Proceedings Violate Basic Fair Trial Rights
(New York) - The Malaysian government should drop all charges in the politically motivated trial against opposition leader Anwar Ibrahim, Human Rights Watch said today. The so-called "Sodomy II" trial, which has been plagued by serious due process problems and government interference, is scheduled to resume on March 25, 2010.
The government has accused Anwar of consensual homosexual conduct with Mohammed Saiful Bukhari Azlan, a former aide, on June 26, 2008, in a private condominium. Court decisions denying Anwar's lawyers access to critical evidence held by prosecutors, and the publication of unreleased trial evidence in a ruling party newspaper, raise serious concerns about whether Anwar will receive a fair trial.
"The government should end this charade of justice and drop the charges against Anwar," said Phil Robertson, deputy Asia director at Human Rights Watch. "Every step of the way, the court has blocked Anwar's lawyers from preparing a thorough defense."
Several of the court's rulings subvert the discovery process, a crucial component of the right to prepare a defense, Human Rights Watch said. Anwar's lawyers have been denied pre-trial access to DNA specimen samples, statements by the plaintiff and key prosecution witnesses, notes from doctors who examined Saiful, and original copies of CCTV surveillance system tapes from the condominium at the time of the alleged incident. Even after the trial began, on February 2, 2010, the court ruled against providing the defendant a list of prosecution witnesses, much less witness statements.
Human Rights Watch is also deeply concerned about political interference in the trial by the ruling coalition. The court took no action in response to articles in Utusan Malaysia, a newspaper owned by UMNO, the lead party in the ruling coalition, containing information gathered during the court's in camera fact-finding visit to the condominium.
"The publication of unreleased trial evidence in what is effectively a government newspaper is an appalling attempt by the government to interfere in the Anwar case," Robertson said. "This is just the latest instance of the ruling coalition trying to call the shots in this trial of a major opposition leader."
Other instances of government interference have surfaced during the 20 months since the charges were first leveled against Anwar. The most damaging episode was the involvement of Attorney General Tan Sri Abdul Gani Patail, who in March 2009 transferred the case from a Sessions Court to the High Court, limiting the defendant's right to appeal should he lose the case. At the time the attorney general issued the order, he was under investigation by the country's anti-corruption agency over allegations that he fabricated evidence in Anwar's first sodomy case, in 1998.
Should Anwar be found guilty, the court could sentence him to a 20-year prison term and whipping. He would also be forced to relinquish his parliamentary seat. Even if Anwar is imprisoned for only one day or fined at least RM2000 (US$600), he would be barred from standing for election for five years.
Human Rights Watch also has concerns about the authorities' investigation of the case and development of charges. Saiful was not examined until 48 hours after the alleged incident, and the first doctor from Hospital Pusrawi (Pusat Rawatan Islam) reported he found no evidence of anal penetration. Saiful then visited Hospital Kuala Lumpur, a government hospital, and a report endorsed by three specialists from that hospital also found "no conclusive clinical findings suggestive of penetration to the anus and no significant defensive wound on the body of the patient."
Saiful originally alleged he was raped but when it was pointed out that Anwar, a then 61-year-old man with a bad back, was no physical match for a healthy 24-year-old, Saiful's complaint was revised to indicate consensual homosexual conduct.
The charges were filed under an antiquated law, a holdover from British colonial rule, that criminalizes "carnal intercourse against the order of nature," both consensual and non-consensual. Human Rights Watch opposes all laws used to criminalize consensual homosexual conduct between adults, and has repeatedly urged the Malaysian authorities to repeal those provisions and replace legislation on non-consensual sexual acts with a modern, gender-neutral law on rape.
"The Malaysian judiciary will only come into disrepute by holding another show trial of the country's opposition leader," Robertson said. "Rather than politicizing the courts and undermining fair trial rights, the Malaysian government should cease the dirty tricks, drop the charges against Anwar, and return politics to where they belong, in the elected Parliament."