Malaysian courts contemptible
The judicial system has
betrayed justice, say international lawyers
This article by Francis Webber and Geoffrey Bindman appeared in The New Law Journal on 4 June 1999
THE ORGANISERS OF the forthcoming Commonwealth Law Conference have a problem. It is planned to take place in Kuala Lumpur, where Anwar Ibrahim, dismissed deputy prime minister, has just been convicted of corruption and sentenced to six years' imprisonment.
Many lawyers, however, are so appalled by the festering corruption which has taken hold of the criminal justice system in Malaysia that the event may be cancelled or moved elsewhere.
The Anwar case, from which only he and his lawyers emerged without discredit, is only the latest in a series of scandals which have brought shame on the Malaysian judges. The notorious removal of the courageous Lord President, Tun Salleh Abas, a few years ago was universally condemned by the world legal community. The Malaysian Bar Council, which has maintained its independence and continued to challenge judicial misconduct, wants the conference to go ahead. Although the government will doubtless view that as an endorsement, the contrary argument is that it will enable other Commonwealth lawyers to demonstrate their disapproval on the spot.
Malaysians have long suffered the impact of Draconian laws. The Internal Security Act was passed in 1960 to defeat the Communist insurrection. It allows unlimited detention without trial. Other laws, coupled with a growing tradition of judicial subservience to the government, have made the legal system an instrument for repressing opposition to corruption and the expression of political dissent. As deputy prime minister and finance minister, Anwar Ibrahim was privy to many complaints of mismanagement and bribery, not least against the prime minister Mahathir Mohamed himself, heavily criticised for bleeding dry public companies (including the nationalised oil company Petronas) to bail out favoured private companies (including a shipping company owned by his son).
Anwar's determination to clamp down on corruption, as well as disagreements over the economy, led Mahathir to engineer his downfall. The means were to fabricate a sex scandal. When in 1997, Anwar received poison pen letters containing allegations of sodomy and sexual misconduct from the sister of his private secretary, and his former driver, he asked police to investigate. Special Branch reported to Mahathir that the allegations were false and had been deliberately created by "certain groups with their own agenda, (working) behind the scenes to urge witnesses to smear" Anwar.
The report named cabinet ministers and politicans close to the prime minister, who accepted the report. Months later, a book went on sale repeating the allegations. A High Court judge granted Anwar an injunction to restrain its sale. In July 1998, prosecutors started preparing a case against Anwar. Charges against a tennis partner of unauthorised possession of ammunition were replaced with much more serious charges under the Internal Security Act, carrying the death penalty. He was induced to implicate Anwar in sex crimes. In the same month, a mattress was seized from an apartment block in Kuala Lumpur.
On September 2, Mahathir sacked Anwar. The following day, prosecutors released affidavits from police officers containing all manners of scurrilous accusations of sexual misdeeds against Anwar. A High Court judge allowed publication, and Mahathir-friendly papers carried special supplements reproducing all the salacious gossip. Anwar's adopted brother and a former speech writer were then arrested. In separate hearings, they pleaded guilty to allowing Anwar to have sex with them, and were each sentenced to six months' imprisonment. They were denied access to their own lawyers and "defended" by others appointed by the prosecution.
They later claimed that they had been tortured and forced to make false confessions. Also in mid-September, two of Anwar's private secretaries were arrested and held incommunicado for several days. On September 20, 1998, after a rally attended by many thousands of supporters, Anwar was violently arrested at home by anti-terrorist police under the ISA. He was taken to police HQ where he was assaulted while blindfolds and handcuffed by Inspector-General of Police Abdul Rahim Noor (who, months later, admitted the assault in evidence to the Royal Commission set up to investigate Anwar's injuries). Anwar received injuries to his eye, neck and head but was refused access to a doctor for five days.
Anwar had been told his arrest was for "unnatural sex" (homosexual acts between consenting adults carry a 20-year prison sentence in Malaysia). But it was later announced he was held under the ISA. Over 50 others, including the head of the ruling party UMNO's youth wing and Muslim youth leaders were arrested in connection with the September 20 protest and 14 were adopted as prisoners of conscience by Amnesty International. Finally, Anwar was charged on September 29 with five counts of sodomy and five of corrupt abuse of power.
The latter charges alleged that Anwar abused his official position to get police to force his accusers to retreat their allegations of sodomy, so that he would escape criminal action. After Anwar's arrest, Mahathir had claimed "I had concrete proof ... I actually interviewed the people who were sodomised, the women whom he had sex with ... I'm not interested in (corruption). I can't accept a sodomist as leader of this country." He also claimed that Anwar's injuries could have been self-inflicted. A newly appointed High Court judge from Malacca, Augustine Paul was appointed in place of the sitting judge who was known to be very experienced and independent-minded. This was in gross breach of normal procedures. Paul insisted that the trial start on November 2, despite requests for more time to prepare for trial.
On October 5, acknowledging that there was now no justification for detention under the ISA, he refused bail. Mahathir objected to foreign observers at the trial saying "their presence will put pressure on the judiciary". Paul refused all observers, including the Malaysian Bar Council. Observers were only permitted after the intervention of the International Court of Justice. Anwar was represented by a team of nine lawyers, all giving their services free. In the month after his arrest, eight of them were questioned by police, and before and during the trial they were subjected to Special Branch surveillance, and at least one to a search of his office. Zull Aznan, Anwar's ADC, was told at the Attorney-General's chambers that his promotion was "on hold pending your performance in court".
It seemed that other's promotion, too, could be dependent on their performance: the Attorney-General, named by Anwar as a party to the political conspiracy against him, frequently sat in on the proceedings and openly threatened and intimidated the judge to assure that his rulings went the right way. His presence was a crucial ingredient in the miscarriage of justice which took place. The prosecution evidence was designed to show that Anwar was a sodomiser and womaniser.
But early in the trial, Azizan, the star prosecution witness and the only one who claimed first-hand evidence of Anwar's alleged sexual exploits, admitted in cross-examination that there had been no sodomy. Even before that, the trial was exposed as a farce when the director of the Special Branch, the author of the report that the allegations against Anwar were baseless, admitted he would lie in court if asked to do so by someone higher than the deputy prime minister. He went on to describe how the Branch "turned over" and "neutralised" detainees by psychological torture.
The introduction of the stained mattress, alleged to be the site of Anwar's adulterous couplings with married women, did nothing to asist the prosecution. A chemist testified that the stains, containing a mixture of Anwar's and a woman's DNA, were conclusive evidence of sex. But in cross-examination he admitted that he could not say if the "female" stains contained vaginal fluid or if they were even deposited on the mattress at the same time as the seminal stains. By the end of the chemist's examination, the prosecution case was demolished. There was no jury; jury trials were abolished over a decade ago.
As a Court of Appeal judge, Justice Chan, remarked: "Everything will have to depend on the judicial conscience of the High Court judge .. But what is there to discourage a renegade judge from exercising his discretion in opposition to established principles of law?" His comment was made in the context of bail, but it proved an accurate warning for the judge's conduct of the trial overall. The defence case was that there was a political conspiracy to remove Anwar from office and to prevent him becoming prime minister by character assassination. Specifically, the defence sought to show that none of the charges of sexual misconduct or sodomy were true, no-one believed them to be true and they had been made for the express purpose of destroying Anwar.
The judge not only disallowed much relevant defence evidence, but used the contempt law to punish defence lawyers for attempting to introduce it. Defence lawyer Zainur Zakaria was sentenced to three months' imprisonment for "scandalous" allegations. The judge refused to stay the sentence pending appal. The Bar Council expressed concern, and 100 lawyers picketed the court in protest. By mid-January it was obvious that the prosecution could not sustain any of the allegations of sodomy or sexual misconduct.
Undeterred, they applied to amend the charges. Instead of claiming Anwar had actually committed sodomy and sexual misconduct they now sought to accuse Anwar of corruption in instructing police to obtain retractions of the evidence against him. The judge allowed the amendments. Two weeks later, he ruled that there was a case to answer. Asking the police to investigate complaints against him was, apparently a crime. Having ruled that the truth or otherwise of the original complaints was irrelevant, Judge Paul steadfastly refused to let Anwar give evidence to rebut them, despite the massive media coverage given to the allegations of sexual misconduct.
He ruled inadmissible evidence of Mahathir's personal involvement in decisions about whether charges should be brought or continued against senior politicians and banned the media from reporting his ruling. He ruled irrelevant Anwar's ADC's evidence that he was summoned to the Attorney-General's chambers at the beginning of the trial and told what to say. Reported conversations were unadmissible hearsay when the defence tried to introduce them but not when the prosecution did exactly the same thing.
When the evidence had ended, Anwar's legal team had had enough. After an application for the judge to be disqualified for partiality "vanished" from the court registry, they refused to participate any longer. They told the judge they would not make final submissions for Anwar. Judge Paul accused them of interfering with justice and ruled them in contempt of court. The conviction was no surprise. It has become obvious that, as Anwar observed on April 14, the charges were "part of a political testimony to destroy me and ensure Dr Mahathir Mohamed's continued hold on power at whatever cost, even if it means sacrificing whatever little is left of the judiciary's integrity".
The trial was only the latest and most high-profile of a pattern of judicial muzzling of criticism of Mahathir and his associates. In 1996, Irene Fernandez, director of a women's and migrants' rights group, Tenaganita, was charged with "publishing false news" after submitting a report to Mahathir on the abuse and ill-treatment of Indonesian migrant workers in immigration detention camps in 1997, opposition MP Lim Guan Eng was fined for sedition and printing false news after accusing the government of covering up the rape by a minister of a 15-year-old girl. In 1998 the Court of Appeal upheld the conviction and enhanced the sentence to 18 months' imprisonment. Their judgement was upheld by the Federal Court.
The severity of the sentence against Anwar was still a shock to the observers: diplomats from the EU embassies, Canada and elsewhere, representatives of human rights groups and foreign journalists. A judicial system had betrayed justice. The law had been used as the tool of the executive. Worse still, the prosecutors were unreprentant. They are even threatening to reinstate the sodomy charges (which they since have). If the Commonwealth lawyers go to Kuala Lumpur in September, they will find much to protest about.
Frances Webber is a barrister who was present in the recent Anwar trial. Geoffrey Bindman is a solicitor who examined the Malaysian criminal justice system on behalf of the International Bar Associatioin in 1994.