Malaysians are coming to terms with the fact that opposition leader Anwar Ibrahim has been sent to jail for five years on a charge of sodomy.

The country is divided into two camps: those who consider the conviction to be a travesty of justice, and those who believe that Anwar is exactly where he deserves to be, and no-one – not least the United States – has the right to criticise the judgement. Emotions are running high on both sides.

On Tuesday, Malaysia’s federal court upheld a ruling by the Court of Appeal last year, which found Anwar guilty of sodomising his former aide Saiful Bukhari Azlan in 2008.

Anwar’s children have launched a “March to Freedom” campaign, there are nightly vigils outside the Sungai Buloh prison where Anwar is being held, and politicians are focused on who will now lead the Pakatan Rakyat (People’s Pact) coalition, and who will contest the parliamentary seat that Anwar will shortly be disqualified from holding. (Under Malaysia’s constitution, the disqualification takes effect 14 days after conviction.)

The cartoonist, Zulkiflee Anwar Ulhaque, better known as Zunar, has meanwhile been detained for criticising the court judgement, and faces a possible charge of sedition.

Police arrested Zunar late on Tuesday. A cartoon he had posted on Twitter showed Malaysia’s prime minister, Najib Razak, as the judge in Anwar’s case. “Those in the black robes were proud when passing sentence,” Zunar tweeted. “The rewards from their political masters must be lucrative.”

Police are also investigating the activities of opposition MPs Nga Kor Ming and Rafizi Ramli. Nga said on Twitter that it was time for the people to oppose a cruel regime, and Rafizi posted a cartoon of a judge wearing a white wig with the dollar sign on it.

In a statement criticising Zunar’s arrest, Human Rights Watch said Najib’s government was “turning peaceful criticism into a criminal act that threatens the state”.

Facebook, Twitter and other social media are still abuzz with reactions. “No clear successor for #Anwar emerging as his wife takes back seat,” was one recent tweet. “Jailing of Anwar is a huge blow to ASEAN’s image & to human rights in SEA,” was another, which called on ASEAN leaders to push strongly for Anwar’s release.

Amnesty International said the decision to jail Anwar  was an oppressive ruling that would have a “chilling effect” on freedom of expression in Malaysia.

Freedom campaigns

It was announced today that Anwar’s second daughter, Nurul Nuha (pictured left), will lead the “March to Freedom” campaign.

Nurul Nuha’s older sister, Nurul Izzah, who is the MP for Lembah Pantai, intervened during a press conference when Nurul Nuha was overwhelmed by emotion. She told the media that her sister would be the face of the campaign.

Nurul Nuha said the “March to Freedom” campaign would be a local movement that would also reach out to Malaysians abroad and urge international bodies to put pressure on Malaysia to release her father.

Nurul Izzah said the campaign would begin with a “send a postcard to Anwar” drive to show her father that he is not alone and that their struggle continued. There would also be a special solat hajat at the Sungai Buloh Mosque with prayers for Anwar’s release.

Anwar’s relatives are extremely concerned about his welfare as there were allegations that he was poisoned with arsenic when imprisoned in 1999.

Asked if Nurul Nuha would be the People’s Justice Party (PKR) candidate for the Permatang Pauh by-election, Nurul Izzah said the candidate to replace her father would be decided by the Pakatan Rakyat coalition leadership council on Friday.

On Sunday, meanwhile, a meeting will be held in Kuala Lumpur to bring together young Malaysians and “pool their enthusiasm and energy to work together to fight injustice and provide solidarity support to Dato ‘Seri Anwar Ibrahim”.

Glaring anomalies

Yesterday, the president of Malaysia’s Bar Council, Christopher Leong, said there were “glaring anomalies” in the case against Anwar and they fuelled the perception that the opposition leader had been persecuted. These anomalies, he said, included the failure to charge Saiful.

Leong explained that Anwar was charged under Section 377B of the Penal Code, read together with Section 377A. Section 377B provides that whosoever voluntarily commits the acts described in Section 377A shall be punished with imprisonment for a term that may extend to twenty years, and shall also be liable to whipping.

“It is notable that Anwar was not charged under Section 377C of the Penal Code for forced sodomy or sodomy rape, although there may appear to have been some allegation of coercion made in the proceedings,” Leong said.

“This has also given rise to questions or concerns as to why the complainant, Mohd Saiful Bukhari Azlan, who was alleged to have been a participant in the act of sodomy, was not charged for abetment under sections 377A and 377B, read together with Section 109, of the Penal Code.”

MP Lim Lip Eng from the opposition Democratic Action Party (DAP) has filed a police report, calling for an investigation into Sailful’s involvement in the act of sodomy. “The highest court in Malaysia has ruled on Tuesday that sodomy, a crime in our country, took place between Anwar and Saiful,” he told Channel NewsAsia. “Shouldn’t both parties in this criminal act be punished?”

Foreign criticism

Several foreign governments have criticised the jailing of Anwar. The former United States ambassador to Malaysia, John Malott, launched a controversial petition to the White House. There have been objections to what is considered by some to undue interference in Malaysia’s affairs and there is now a counter petition to the White House, urging the US to respect Malaysia’s sovereignty.

Malott’s petition states that Anwar, “the Leader of the Opposition in Malaysia, a champion of democracy, a believer in Islamic justice, and a long-time friend of the United States”, was convicted and jailed on “trumped-up charges”.

The White House issued a statement expressing its “deep disappointment” with Anwar’s conviction, the petition states.

“It said that the decision to prosecute Anwar and the conduct of his trial raised serious concerns about the rule of law and the fairness of the judicial system in Malaysia.

“But statements are not enough. The Administration must follow its words with action. Anwar is a political prisoner. The future of democracy in Malaysia is at stake. Securing Anwar’s release from prison must be a top priority in US policy towards Malaysia, to be advanced in every way possible.”

Malaysian Chinese Association central committee member Lua Choon Hann expressed his discontent in a statement. “Foreign countries should not interfere in the domestic matters in our country or attempt to sway the independence of our judiciary,” he said.

“We also expect the diplomatic corp – be they currently being posted to Malaysia, or abroad or have retired, should likewise maintain a neutral stance.”

Lua Choon Hann said Malot had breached diplomatic protocol by being impartial in openly expressing support for Anwar, criticising the Malaysian government, and urging the American government to prioritise Anwar’s release in bilateral relations between Malaysia and the US.

He also criticised the “March to Freedom” campaign, which he said was aimed at tarnishing Malaysia and placing its judiciary in disrepute.

The Canadian High Commission said Anwar’s conviction raised serious questions about judicial independence and selective prosecutions in Malaysia. Anwar’s conviction came at a time when Canada and other countries had conveyed concerns about selective prosecutions in Malaysia, Canada said.

The British High Commission expressed its concern via a statement by the minister for Asia, Hugo Swire. Swire said he was deeply concerned about Anwar’s imprisonment and there were worrying questions about the independence of the judiciary and the rule of law in Malaysia. “We encourage Malaysia to recognise the importance of international confidence in its judicial system and to restore trust in its commitment to human rights.”

The European Union said the conviction and sentencing of Anwar raised serious questions regarding due process of law.

Australia’s Foreign Affairs Minister, Julie Bishop, said Australia was disappointed by the court decision and was deeply concerned about the severity of the sentence. Australia had made its concerns known to the Malaysian government, she said.

“As a friend of Malaysia, Australia encourages the Malaysian Government to consider the impact of recent decisions, including the Anwar verdict and the retention of the Sedition Act, on its international standing and its commitment to human rights.”

International Commission of Jurists (ICJ) commissioner Justice Elizabeth Evatt said the Malaysian government had once again inappropriately used Section 377B of the Penal Code against a political opponent.

“This is deplorable, especially since Section 377B criminalizes consensual same-sex relations and thereby violates a range of international law and standards, including on the rights to privacy, non-discrimination and equal protection.”

Spokesman for the UN High Commissioner for Human Rights, Rupert Colville, said the UNHCR was disappointed by the federal court ruling. “There are allegations that this case has been politically motivated and the trial marred by violations of due process rights in relation to the opportunities provided to the defence, raising concerns about the fairness of the judicial process.”

Anwar and his lawyers had also been investigated and prosecuted under the 1948 Sedition Act for speaking about the case, Colville said. “We are highly concerned by the increasing use of the Sedition Act in an apparently arbitrary and selective fashion, against political opposition, human rights activists, journalists, lawyers and university professors in Malaysia since 2014.”

International Federation for Human Rights (FIDH) president, Karim Lahidji, said the verdict was the “disgraceful conclusion of a relentless judicial campaign against Anwar Ibrahim”.

Malaysia’s judiciary had failed to demonstrate its independence from the executive branch in a trial that had clear political motivations, Lahidji said.

In his statement about the case, Amnesty International’s Asia Pacific director, Richard Bennett, said: “This is a deplorable judgment, and just the latest chapter in the Malaysian authorities’ relentless attempts to silence government critics. The ‘sodomy’ charges against Anwar Ibrahim have always been politically motivated, and he should be released immediately.

“The Malaysian judiciary missed an opportunity to demonstrate its independence from political interference. We consider Anwar Ibrahim to be a prisoner of conscience – jailed solely for peacefully exercising his right to freedom of expression.

“The attempts to silence the opposition leader come amidst a wider crackdown on dissenting voices in Malaysia. The authorities have over the past year made increasing use of the draconian Sedition Act to target journalists, politicians and academics they find inconvenient. This practice must end immediately.”

Local reactions

The PKR chairman for Sarawak, Baru Bian, said February 10, 2015, would go down in history as a dark day for Malaysia’s judiciary. “The appeal process is exhausted and Anwar Ibrahim has no further legal recourse. That does not mean there is nothing we can do. Malaysians must respond through the ballot box.”

He said the ruling Barisan Nasional coalition might think that, with the jailing of Anwar, the voices calling for change would be crushed. “They could not be more wrong. We stand behind Anwar Ibrahim and his family as they once again face the heartbreak of separation and incarceration. Their sacrifices will not be forgotten.”

The PKR vice-chairman for Sarawak, See Chee How, said Anwar was a victim of persecution and the federal court’s verdict had fuelled the political storm brewing in Malaysia.

Writing on the Hornbill Unleashed website, Stephen Ng said: “It has been proven that Najib has more to lose than to gain with the five years’ jail sentence being meted out against his political foe. He should have learnt from his predecessor’s mistake, when the opposition leader was first thrown into prison in 1999.”

He added: “With the conclusion of Sodomy II, Najib’s reputation as a moderate Muslim leader has received the biggest blow in less than one week than in all his seven years as prime minister of Malaysia.”

The powers that be should realise, Ng said, that every arrest they made influenced a few hundred, if not thousands of ordinary Malaysians against what they consider to be a cruel regime. “Like it or not, Anwar’s imprisonment is at the height of it all.”

A force to be reckoned with

Former Bar Council president Ambiga Sreenevasan said tonight that Anwar was more dangerous to the government inside prison than outside.

The government might think that the Anwar factor had diminished with his incarceration, but he had actually become a bigger factor in the Malaysian political scene, she said at a forum in Kuala Lumpur entitled: “Anwar behind bars: The future of Malaysian politics”.

The government shouldn’t discount Anwar, she said. “He is at his best when he is down‎. Barisan Nasional will see that it has made a terrible mistake in imprisoning him‎.”

Ambiga said the opposition coalition should stay united for the sake of the people if they were to capitalise on Anwar’s momentum. She criticised the chief prosecutor, Muhammad Shafee Abdullah for issuing a statement that personally attacked Anwar after the conviction.

Anwar has been the glue that has been holding the Malaysian opposition together and it’s clear that, even behind bars, he remains a force to be reckoned with.

It remains to be seen how far the Malaysian government will go to silence the critics of the federal court verdict and whether there can now be cohesive opposition to a coalition that has been in power for the past 58 years.

Anwar’s family and supporters are clearly determined to rise to the current challenge, and have some heavyweight international support.

Najib, meanwhile, is already under fire from opponents within his own party and the jailing of Anwar has, in most people’s eyes, put another smear on his already badly soiled reputation. The conviction of the leader of the opposition may turn out to be a veritable poisoned chalice.

Full Bar Council statement

The Malaysian Bar refers to the decision of the Federal Court on 10 February 2015 with respect to the appeal by Dato’ Seri Anwar Ibrahim against his conviction and sentence to five years’ imprisonment by the Court of Appeal for a charge under section 377B, read together with section 377A, of the Penal Code.

The parties in the appeal were previously given a full hearing before the Federal Court between 28 October 2014 and 7 November 2014.  Having listened to both parties and considered their arguments and submissions, the Federal Court had adjourned the matter for consideration and deliberation.  On the morning of 10 February 2015, the Federal Court delivered an extensive judgment and affirmed the conviction and sentence of five years’ imprisonment of Dato’ Seri Anwar Ibrahim.

The Malaysian Bar has not yet had the opportunity to peruse the extensive written grounds of judgment of the Federal Court, and makes no comment at present as to the grounds for the affirmation by the Federal Court of the conviction and sentence of Dato’ Seri Anwar Ibrahim, save to say that in a criminal trial and any appeals arising therefrom, the accused need only raise a reasonable doubt in the prosecution’s case.  Where there is any such reasonable doubt, the accused must be acquitted. The hearing of Dato’ Seri Anwar Ibrahim’s appeal was extensively reported in the media, and thus the decision of the Federal Court has come as a surprise to many.

Sections 377A and 377B of the Penal Code criminalise sodomy and oral sex (fellatio).  Section 377B provides that whosoever voluntarily commits the acts described in section 377A shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping. However, section 289 of the Criminal Procedure Code provides that no male above the age of 50 years shall be punishable with whipping.

It is notable that Dato’ Seri Anwar Ibrahim was not charged under section 377C of the Penal Code for forced sodomy or sodomy rape, although there may appear to have been some allegation of coercion made in the proceedings.  Section 377C provides for essentially the offence of sodomy rape, and states that whoever voluntarily commits sodomy “on another person without the consent, or against the will, of the other person, or by putting the other person in fear of death or hurt to the person or any other person, shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping”.

It may be said that Dato’ Seri Anwar Ibrahim has been convicted of an offence, sentenced to five years’ imprisonment, and will be disqualified from being a Member of Parliament with respect to a charge that seems, on its face, to be a victimless offence. 

This has also given rise to questions or concerns as to why the complainant, Mohd Saiful Bukhari Azlan, who was alleged to have been a participant in the act of sodomy, was not charged for abetment under sections 377A and 377B, read together with section 109, of the Penal Code.

Further, the charge against Dato’ Seri Anwar Ibrahim is based on a provision of the Penal Code that has rarely been used.  Given this, it is remarkable that Dato’ Seri Anwar Ibrahim has been prosecuted and convicted twice for an alleged offence of sexual acts between adults wherein the charge does not contain elements of coercion.

It is a strange world that we live in.

These glaring anomalies fuel a perception that Dato’ Seri Anwar Ibrahim has been persecuted, and not prosecuted.

Christopher Leong, President, Malaysian Bar; February 11, 2015.

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