1998 was tumultuous year in Malaysian politics.
In that year, Mahathir Mohamad sacked Anwar Ibrahim as Deputy Prime Minister and Finance Minister and dragged him to court on abuse-of-power and sodomy charges which many believe to this day to be politically motivated and his conviction to be politically influenced.
The entire mass media under the government’s control was harnessed to demonize Anwar and destroy him politically.
Despite this, a yawning chasm existed between what the government wanted the public to believe and what they actually believed.
The result was a social and political crisis that rocked the nation, split the Malays and galvanized many politically apathetic people to take an active interest in politics to try to effect a change for a better government that does not abuse all the institutions of democracy to achieve its ends.
The resulting political fallout saw PAS gaining at the expense of Umno in the 1999 general election and the creation of a new political party rooted in social justice, the effects of which still resonate today.
Indeed, the accelerated growth of PAS from a rural Malay party to a national party and the rise of PKR can be traced back to the Malay community’s repugnance at Mahathir’s cruel treatment of Anwar more than ten years ago.
History Repeats Itself
It is said that those who fail to learn from the mistakes of the past are doomed to repeat them.
Eleven years later, the nation is set to witness a repeat of the gut-wrenching melodrama and tragi-comedy of yet another Anwar sodomy trial, which again is set to shake the nation and drag public confidence in our enforcement institutions to new lows.
But the stakes are higher now as Anwar has become Opposition Leader and one who carries the hopes of millions of Malaysians for a new and better Malaysia.
The political-social environment has also changed significantly with the dissipation of Mahathir’s climate of fear and the pervasiveness of the Internet loosening the government’s stranglehold on information.
More importantly, the formation of a two party system by the enlarged and united opposition forced the ruling party to be democratically competitive.
In this new environment, it would be political suicide to try a repeat of the previous sodomy caper. However, those who have held the levers of power for too long are sometimes blinded by their arrogance besides overestimating their abilities and under-estimating the public.
The Facts of the Case
Whatever has been revealed in the public domain on sodomy II only serves to give the public the impression that this is nothing more than another politically motivated prosecution.
In the first place, the charge itself does not inspire confidence given that homosexuality is not actively prosecuted in Malaysia although outlawed in the statute books. Nobody has been prosecuted under this archaic law except for Anwar in 1998
The fact that the accuser, Saiful is a known Umno sympathizer does not help matters. His demeanour when he appeared in public smiling and waving to the press is certainly not typical of one who has been forcibly sodomized as he alleged.
Revelations that the he has met with top government officers including Datuk Seri Najib who was DPM at the time (purportedly for career guidance) and a senior police officer at the Concorde Hotel in Shah Alam before he made his accusation public have raised eyebrows and deservedly so.
There are also elements in his story which strains credibility like having been sodomized seven times before he made his poice report, waiting 3 days from the last act to do so and his insistence that he was sodomized against his will by a 61-year old man who is physically no match for him.
But the top was blown off the case by a doctor from Pusrawi Medical Centre from whom Saiful sought a medical examination. This good doctor recorded plainly that the alleged victim had never been sodomized.
Despite this, the Attorney-General (photo) saw fit to ram through a charge of consensual sodomy despite the main witness insisting to all and sundry that it had happened against his will.
Sodomy II Goes to Trial
It should be emphasized that the case must be proven beyond reasonable doubt - not in Umno’s court which is already low in public credibility - but in the court of public opinion if the ruling party does not wish to suffer a terrible backlash.
The fact is that real cases of rape or sexual abuse are notoriously difficult to prove, what more a fabricated one.
The public will not be impressed by circumstantial evidence or DNA evidence and the latter would be immediately assumed to be faked given the low credibility of the police and the fact that such chicanery has been attempted before in sodomy I.
Nothing short of a video capturing the act will be convincing enough but if such a video exists, the government would have broadcasted it on all the TV channels, uploaded it online and produced a million CDs for distribution to stop Anwar from making a comeback in Permatang Pauh.
If the prosecution has any real proof, they could have obtained a conviction from any judge - even from the fair-minded Justice Komathy Suppiah in the Sessions Court under which the case was originally heard - instead of fighting tooth and nail to transfer it to the High Court as if their whole case depends on the judge who hears it.
Attack and Defense
What are Anwar’s chances of escaping a conviction? Apparently not good if the court proceedings of sodomy I are any guideline.
The public release by Anwar’s lawyers of Hospital KL’s report that the accuser has no evidence of being sodomized, which corroborates the Pusrawi Medical Centre’s report, will not necessarily stop them. It did not matter in sodomy I.
The definition of a kangaroo court is a judicial proceeding that violates established legal procedures, the rights of the defendant are disregarded and his defence is restricted.
Relevant evidence and witnesses are not allowed to be called, cross examination of witnesses controlled and irregularities ignored so as to render a fair trial impossible.
In the 1998 Anwar trial, judge Augustine Paul (photo) disallowed the defence of political conspiracy, allowed the case to proceed without medical evidence that the accuser had been sodomized.
Augustine also allowed the charges to be changed midway, disallowed the defense’s attempt to introduce key evidence and witnesses as irrelevant, allowed faked DNA evidence to be expunged instead of throwing out the case out. This man even jailed one of the defence lawyers for contempt for bringing to the court’s attention fabricated evidence.
I leave it to readers to judge if the above fulfils the definition of a kangaroo court.
But in this present case, there is an anomaly in the charge which can be exploited by the defence team.
Anwar was charged for consensual sodomy under Section 377B of the Penal Code although his accuser has insisted publicly that he was forcibly sodomized and even swore to it in a mosque.
Naturally, the prosecution wants to spare themselves the inconvenience of proving how a frail elderly man with a bad back can force himself on a strapping youth physically bigger and stronger than him. Hence, the charge under Section 377B.
But you cannot have a charge for consensual sodomy and the main witness insisting that he was forcibly raped. So either the charge must be amended to Section 377C for forced sodomy or Saiful must declare in court that sodomy was consensual. If the charge and the accuser’s testimony cannot be reconciled then it must be thrown out.
As Saiful has sworn in a mosque that he was forcibly sodomized – a very serious action to Muslims indeed – and BN has made political capital of this at the Permatang Pauh by-election, the political fallout will be explosive to the Malay Muslim mind.
So the prosecution faces a terrible dilemma, to try to prove the impossible or to engender a punishing political backlash which Umno may never recover in the staunchly religious Malay heartlands.
Such a dilemma would never have occurred if the charge had been based on a true event instead of a fabricated one.
In the 1999 general election, the fallout from the Anwar case caused Umno’s Malay support to shrink to 49% from their normal baseline of 55%.
BN was only saved by the non-Malays who swung to Umno on the back of PAS’ foolish proclamation to create an Islamic state which all but scuppered the nascent Barisan Alternatif coalition.
Given that the majority of non-Malays have swung back to Pakatan Rakyat on the expectation of more equitable racial treatment, such help from them to compensate another Malay swing out from Umno is unlikely.
If the level of Malay support for Umno drops below 50% in the current political scenario, BN is likely to be wiped out in the Peninsula and even a clean sweep of East Malaysia cannot save them.
The political masters may have though that putting Anwar away will solve their problems but it could hasten their demise.
The opposition coalition has grown beyond Anwar and no longer requires his personal participation to stay together.
A conviction of Anwar seen as unfair and a political hatchet job will energize the opposition and create so much public sympathy and disgust that PR will ride the wave to victory in the next general election.
The perpetrators are tampering with powerful forces beyond their control. If they have nothing on Anwar it is best to swallow their pride and just drop the charges.