Drop Appeal of Verdict; Revoke Colonial-Era Ban on ‘Sodomy’
(Bangkok) –The Malaysian authorities should drop their apparently politically motivated appeal of opposition leader Anwar Ibrahim’s acquittal on sodomy charges, Human Rights Watch said today. On September 17, 2013, the Court of Appeal in Kuala Lumpur will hear the prosecution’s appeal of the Malaysian High Court’s January 9, 2012 verdict to acquit Anwar of having consensual sexual relations with his political aide Mohammed Saiful Bukhari Azlan.
The Malaysian government should urgently abolish its colonial–era criminal code prohibition against “sodomy” and thus ensure that no such discriminatory prosecutions occur in the future.
“Malaysian authorities are only adding insult to injury by appealing Anwar’s acquittal, compounding the injustice already inflicted on Anwar and his family,” said Phil Robertson, deputy Asia director. “The best way to ensure this kind of politically motivated persecution doesn’t happen again is for the government to abolish the hateful law on which it’s based.”
In his decision acquitting Anwar, High Court Judge Mohamad Zabidin Diah ruled that the DNA evidence presented by the prosecution in the case had not been handled properly and could have been tampered with. The judge ruled that in the absence of evidence that could corroborate Saiful’s version of events, a guilty verdict was not possible.
Although the trial ended in acquittal, the case was marred by procedural problems that raised serious fair trial concerns. During the trial, the prosecution refused to share a number of critically important documents with the defense counsel including lists of witnesses to be called at court, surveillance tapes at the condominium where the alleged offense took place, and most crucially, access to DNA samples and original medical reports.
Government leaders regularly made public comments on the trial and the prosecution made obvious procedural breaches, such as leaking information from an on camera fact-finding visit by the court.
Should Anwar lose the appeal, he faces a prison sentence of up to 20 years, and whipping. Anwar would also have to relinquish his parliamentary seat and be barred from standing for election for five years if he is imprisoned for even one day or fined more than RM 2000 (US$600).
Prosecutors originally charged Anwar under article 377 of the penal code, a Victorian-era British colonial law that criminalizes any activity that the authorities decide constitutes “carnal intercourse against the order of nature.”
In 1994 the Human Rights Committee, the United Nations body of experts that monitors civil and political rights, held that sodomy laws violate the right to privacy and non-discrimination. The Yogyakarta Principles, a set of international legal principles on the application of international law to human rights violations based on sexual orientation and gender identity, call on states to, “Repeal all laws that criminalize consensual sexual activity among persons of the same sex who are over the age of consent.”
A November 2011 report by the UN high commissioner for human rights, presented to the UN Human Rights Council in March 2012, recommended that UN member states “repeal laws used to criminalize individuals on grounds of homosexuality for engaging in consensual same-sex sexual conduct.” The high commissioner’s report, commissioned under a landmark resolution on “Human rights, sexual orientation and gender identity” that was adopted by the Human Rights Council on June 17, 2011, made numerous other recommendations, including several that are relevant to Malaysia. They include: “enact comprehensive anti-discrimination legislation that includes discrimination on grounds of sexual orientation and gender identity”; and “ensure that individuals can exercise their rights to freedom of expression, association, and peaceful assembly in safety without discrimination on grounds of sexual orientation and gender identity.” Also in 2011, leading members of the Commonwealth of Nations to which Malaysia belongs called for the abolition of sodomy laws.
Human Rights Watch opposes all laws regulating sexual relations between people who are over the age of consent and advocates that Malaysia adopt a modern gender-free rape law to replace existing legislation regulating forcible sexual relations. Sodomy laws also compromise privacy rights. The Malaysian government has used these laws to criminalize consensual homosexual relations and pursue charges against a public figure like Anwar in what amounts to a selective prosecution for political purposes.
“Anwar never should have been charged in the first place because consensual sexual relations between adults should never be criminalized,” Robertson said. “Malaysia should fulfill its obligations as a member of the Human Rights Council and bring its rights practices into compliance with international standards.”