Most
observers conclude that a conviction in Anwar's case, one upheld on
appeal, would essentially end Anwar's political career given the legal
penalties and Anwar's age (62). According to the Federal Constitution, a
member of Parliament will be disqualified from holding his seat if he
is convicted of an offense and sentenced to imprisonment for a term of
not less than one year or to a fine of not less than US $570 (RM 2,000)
and has not received a free pardon.
THE CORRIDORS OF POWER
Raja Petra Kamarudin
C O N F I D E N T I A L SECTION 01 OF 07 KUALA LUMPUR 000529
SIPDIS
FOR EAP/MTS
E.O. 12958: DECL: 07/01/2019
TAGS: PGOV, PHUM, KDEM, KJUS, MY
SUBJECT: ANWAR IBRAHIM'S SODOMY TRIAL II - A PRIMER
Classified By: POLITICAL COUNSELOR MARK D. CLARK, REASON 1.4 (B AND D).
Summary and Comment
1.
(C) Malaysian Opposition leader Anwar Ibrahim will go on trial
beginning July 8 on charges of sodomy -- a criminal offense in Malaysia
-- with a former aide. Anwar was previously tried and convicted of
sodomy in 2000 in a heavily manipulated trial that the U.S. concluded
"was marred by deep flaws in the judicial process." The verdict was
overturned on appeal in 2004.
Senior Malaysian authorities
were very aggressive in handling the present case during the initial
period of June-September 2008, but, coinciding with the passing of
Anwar's deadline to bring down the government through Parliamentary
cross-overs, have since taken a more measured "rule-of-law" approach in
public. Authorities have not taken all the legal and extra-legal
measures available to them, for example, to challenge Anwar's bail
provisions or resolve an earlier impasse regarding the court venue.
Anwar's
conviction in this trial, which may last many months, could end his
political career; the judge would decide whether Anwar would remain free
pending an appeal. This cable provides a primer for the Department's
reference, including background on the 2000 conviction and the present
case, a synopsis of the specific legal charges and penalties, a summary
of likely evidence to be presented in court, and three possible
scenarios for the trial.
2. (C)
Comment: The
issue of the specific actions between Anwar and his aide will play out
in court and, we suspect, in a very sensationalistic fashion. The facts
surrounding the case, however, make a compelling argument that the
government's prosecution of the case is foremost a political act against
the Opposition leader.
Whether the incident in question was
wholly concocted or has some basis in fact, the case is not part of a
morals campaign or a normal criminal matter and has been the subject of
extensive political interference and manipulation. As one consequence,
much of the Malaysian public remains deeply sceptical about the
government's prosecution of Anwar Ibrahim.
Anwar's flawed
trials in 1998-2000 produced a public uproar and attracted international
condemnation; in today's information-intensive environment, such
effects may be exacerbated depending on events in court. Embassy will
provide draft press guidance for the Department's consideration prior to
the July 8 trial date.
End Summary and Comment.
Sodomy Case I, 1998-2000
3.
(SBU) Under the government of former Prime Minister Mahathir, Anwar
Ibrahim was charged and convicted of sodomy (and abuse of power) in a
sensationalistic trials in 1998-2000, directed and heavily manipulated
by Mahathir against his former deputy. Anwar was charged with
sodomizing his wife's driver.
During his pre-trial detention,
Anwar was beaten by the then Inspector General of Police. The High
Court convicted Anwar of sodomy in August 2000 and sentenced him to nine
years imprisonment.
The U.S. expressed deep concern with the
first sodomy trial, noting "that the trial and (Anwar's) resulting
conviction and nine-year jail sentence were marred by deep flaws in the
judicial process."
After Mahathir stepped down in favor of
Abdullah Badawi, the Federal Court overturned the conviction in
September 2004 and released Anwar from prison (Anwar's separate
conviction for abuse of power remained in place). The Federal Court
found there were "many unusual things that happened regarding the arrest
and confession" of certain prosecution witnesses, including the fact
that Anwar's driver stated that he was paid to make the allegations
against Anwar.
In an unusual move and possible political
compromise, the Federal Court judges included in their judgment the
conclusion that there was evidence to confirm "the appellants were
involved in homosexual activities," but added that the prosecution
failed to prove the alleged offenses beyond reasonable doubt.
Because
Anwar's conviction on the separate charge of abuse of power was not
overturned, he was barred from political office until April 2008.
Sodomy Case II, 2008
4.
(SBU) Less than four months after Anwar Ibrahim's People's Justice
Party (PKR) and its opposition partners made significant advances in the
March 2008 national elections, and three months after Anwar became
eligible for political office, an aide to Anwar, Mohd Saiful Bukhari
Azlan, filed a police report on June 28, 2008, alleging that he had been
forcibly sodomized by Anwar on several occasions.
The
following day, Anwar took refuge in the Turkish ambassador's residence,
claiming that he feared a repetition of his 1998 arrest and for his
personal safety. He remained with the Turkish ambassador for only one
day, departing after public assurances of his safety from the Foreign
Minister and Home Minister.
In the midst of a highly charged
political atmosphere, which included Anwar's claims that he could bring
down the government through Parliamentary defections by September 16,
2008, and new allegations linking then DPM Najib with the Altantuya
murder case, the police investigation proceeded.
It came to
light that Saiful had had contact with the office of then DPM Najib
prior to working with Anwar, and more significantly Saiful had met with
Najib (and allegedly his wife Rosmah) at Najib's home just prior to
filing his police complaint.
Najib first denied publicly he
had any connection with the case, and then acknowledged meeting Saiful,
an admission that preempted internet reports about to be released by
blogger Raja Petra (who is now a fugitive from sedition charges).
5.
(SBU) As authorities made known their intention to arrest and charge
Anwar for sodomy, Anwar's lawyers arranged for his voluntary appearance
before police for questioning and charging. Contrary to the agreement,
on July 16, police in commando-style outfits waylaid Anwar's convoy en
route to the police station and arrested him on the street. Police
questioned Anwar, took him to a hospital to provide a DNA sample (which
Anwar refused, citing lawyers' advice and fear of "manipulation"), and
held him overnight. Anwar was released on police bail by a magistrate
on July 17.
The Charges
6. (SBU) On
August 7, 2008, prosecutors charged Anwar Ibrahim before a Sessions
Court under Section 377B of the Penal Code, which reads: "Whoever
voluntarily commits carnal intercourse against the order of nature shall
be punished with imprisonment for a term which may extend to twenty
years and shall be liable to whipping." Section 377A of the Penal Code
defines "carnal intercourse against the order of nature" as including
sodomy.
Prosecutors specifically charged Anwar with the
sodomizing of Saiful Bukhari Azlan at a Kuala Lumpur condominium (owned
by Anwar's friend) on June 26, 2008.
Although Saiful originally
claimed he was forcibly sodomized on several occasions, the prosecutors
chose not to pursue charges against Anwar under a separate Penal Code
section (377C), which pertains to non-consensual sodomy (with a higher
burden of proof), and also to focus on only one alleged incident.
It
is important to note that under Malaysia's legal system, prosecutors
may amend the charges during the course of the trial. Saiful himself
does not face charges for the alleged acts. The Court ordered Anwar to
remain free on a personal bond of US $5,700 RM 20,000 and did not impose
other restrictions (for example, Anwar has been free to travel abroad
and has done so on many occasions since August 2008). The government
did not attempt to dispute or revoke the bail provisions.
Wrangle and Delay over Court Venue
7.
(SBU) Following Anwar's formal charging, and with Anwar's 9/16 deadline
looming in the background, prosecutors quickly moved to transfer the
case from the Sessions Court to the High Court.
The
prosecution argued on September 10, 2008, that such an important case
with possibly complicated legal issues should be dealt with at the High
Court and produced a certificate signed by the Attorney General to move
the case, which under normal circumstances automatically results in a
transfer.
However, Anwar's lawyers objected to the transfer
out of concern that the more politicized High Court level would result
in a pro-prosecution judge hearing the case, as happened during the
first sodomy trial in 1999-2000.
In November 2008,
independent-minded Sessions Court judge Komathy Suppiah rejected the
certificate of transfer, noting that Attorney General Gani Patail faced
allegations of evidence tampering in Anwar's 1998 case and the transfer
order signed by the AG would "undermine the public perception of the
judiciary."
8. (C) Judge Komathy was overruled in March 2009
by High Court judge Mohamad Zabidin Md Diah who decided the Sessions
Court has no authority to refuse the Attorney General's transfer order;
Zabidin himself was then assigned to preside over the sodomy trial.
Anwar's
lawyers filed an appeal against the transfer; the Court of Appeals only
began to hear the appeal on June 30; based on precedent, Anwar's camp
admits the appeal has little chance of success. Zabidin initially
attempted to schedule the trial to begin in May 2009; defense lawyers
argued they needed more time and hoped their appeal would be heard prior
to the trial.
(
Note: The High Court often takes one to two years before setting trial dates in normal criminal cases.
End Note.)
Zabidin
subsequently set the trial to begin on July 1. Anwar's lawyers filed
an application to compel the prosecution to provide them with full
documentation and evidence that will be introduced at the trial, which
the prosecution has thus far failed to do in apparent violation of the
Criminal Procedure Code.
With the hearing on the disclosure of
evidence set for July 1 (now pushed back to July 3), Judge Zabidin
postponed the trial start to July 8. The judge originally specified a
three-week duration for the trial, but lawyers assume that the trial
will take many months to conclude.
The High Court Judge
9.
(C) High Court Judge Mohamad Zabidin Md Diah is a lawyer by training.
After private law practice, he joined the judicial service as a Sessions
Court judge and was elevated to judicial commissioner in 2004. After
two years on contract, Zabidin was promoted to become a permanent High
Court judge in 2006.
Zabidin is not a well-known judge and is
not associated with high profile or controversial judgments, according
to our senior legal contacts. Anwar's lawyers allege that Zabidin is
beholden to the government and will favor the prosecution; the judge's
unusual rush to bring the case to trial is viewed by the defense as an
early indication of his bias.
Government Switches Gears
10.
(C) Senior government and UMNO party officials adopted a very
aggressive public and private approach to the Anwar case during the
June-September 2008 period. This included frequent, prejudicial
statements in public, and strong claims in private to other politicians
and diplomats regarding Anwar's guilt.
This intensive phase
encompassed the initial news of the allegations and Anwar's formal
charging, but also Anwar's own aggressive political posturing and claims
that he could bring down the government by September 2008 through
Parliamentary crossovers.
After Anwar's deadline passed in
September, and after resolution of the UMNO leadership battle in favor
of Najib's succession in October 2008, we observed a definite toning
down of the Government's approach, and a shifting to a lower gear. For
example, we did not hear reports of government intervention to quickly
resolve the matter of the court venue, which effectively delayed the
prosecution by some seven months.
Anwar's bail provisions
remained in place and unchallenged. Public statements by senior
government officials, outside of by-election campaigns, became
infrequent. This toned down approach has continued through the present;
it would fit within a hypothetical decision to demonstrate that the
trial is a law enforcement matter, rather than a political battle.
Regardless, it is clear that the government has not taken all the legal
and extra-legal steps against Anwar that it could have since September
2008.
GOM Confidence: Waning or Recalculating?
11.
(C) Many of our government and UMNO contacts have insisted to us,
emphatically so in the early months of the case, that the evidence
against Anwar is very conclusive, often hinting at video footage and
physical evidence like DNA (see below).
Recently, some
contacts sympathetic to Anwar but not part of his team claimed the
government over time had become less certain it had sufficient evidence
to convict Anwar.
According to one unconfirmed account, in
June several key aides to PM Najib advised him to drop the case against
Anwar because the evidence was not strong enough for an easy conviction
and the political cost of forcing through a guilty verdict would be too
high. It is also possible that the toned down rhetoric from the
government has been misinterpreted as uncertainty on the authorities'
part.
Evidence at the Trial
12. (C) Based on available information, we believe the following evidentiary aspects will feature in Anwar's trial:
Saiful's complaint:
The testimony of Saiful is central to the government's case, and he is
expected to take the stand. Saiful has continued to assert that he was
forcibly sodomized, although the charges under Section 377B do not
require proof of a non-consensual act; given his youth (age 23) and
physical size, Saiful will need to explain specific circumstances of the
incident to support his assertion of rape.
Medical reports:
As publicly revealed by defense lawyers, Saiful underwent two medical
examinations on June 28, 2008, just prior to lodging a police report.
The first examination by a Burmese doctor at a local hospital concluded
there was "no conclusive clinical findings" suggestive of sodomy, and
the doctor recommended he be examined at a government hospital in line
with police procedures in such cases.
(
Note: The Burmese doctor briefly left Malaysia after being held for questioning by police.
End Note.)
The
second examination at the police-approved government hospital also
failed to uncover medical evidence of sodomy, according to copies of
hospital reports released by the defense.
DNA:
The defense team believes prosecutors will introduce DNA evidence,
based on DNA samples held by the police since 1998, and are preparing
expert witnesses. The government's hurried passage in Parliament of a
DNA bill, approved by the lower house on June 23, is widely seen as tied
to the Anwar trial and will permit the government to utilize the
11-year old samples. The defense could claim the samples were planted,
as is widely believed to be the case in Anwar's earlier prosecution.
Anwar's alibi:
Anwar's lawyers claim that five persons will testify that Anwar was
with them at the time of the alleged incident. They also claim that
police attempted but failed to intimidate some of these defense
witnesses to change their accounts.
CCTV: The
prosecution may use CCTV footage from the condominium where the alleged
incident took place to confirm Anwar's presence at a specific date and
time.
Character witnesses: As happened in the 1999 case, it is
very possible that prosecutors introduce witnesses to attack Anwar's
character and actions aside from the alleged 2008 sodomy incident.
There are unconfirmed reports that the prosecution will call 30
witnesses to the stand.
Defense witnesses (PM Najib and wife Rosmah?):
In an effort to demonstrate the political motivation in the
government's case, defense lawyers could call PM Najib, his wife Rosmah,
and other senior officials such as Najib's aide Khairil Anas Yusof who
appear connected to the case (Najib and Rosmah because they met Saiful
and discussed his reporting to the police). While this will make for
momentary drama, we expect the judge to disallow such moves.
Bail and other Conditions during the Trial
13.
(C) Anwar's legal team has expressed concern that the prosecution may
apply to revoke the personal bond that allows Anwar to be free pending
the trial or seek to impose other conditions, such as impounding his
passport or restricting his movement to within Kuala Lumpur.
The
lawyers acknowledge that there is not a strong precedent for
overturning the existing bail decision. In several recent
politically-charged court cases, however, Malaysian judges have ignored
precedent decisions.
(
Note: We have no information on the prosecution's intentions in this matter.
End Note.)
What if Anwar is Convicted?
14.
(C) Most observers conclude that a conviction in Anwar's case, one
upheld on appeal, would essentially end Anwar's political career given
the legal penalties and Anwar's age (62). According to the Federal
Constitution, a member of Parliament will be disqualified from holding
his seat if he is convicted of an offense and sentenced to imprisonment
for a term of not less than one year or to a fine of not less than US
$570 (RM 2,000) and has not received a free pardon.
This
stipulation comes into effect after all appeals are exhausted (at the
Court of Appeals and Federal Court). The constitution also provides
that a convicted person can only be active in politics after five years
from the date of his release from prison. At age 62, a second
conviction could effectively bar Anwar permanently from political life.
In the event of a conviction, Anwar will certainly appeal.
The
judge will decide whether Anwar remains free pending appeal or
immediately goes to jail. While officially remaining a Member of
Parliament pending the final outcome, he would be unable to operate from
prison as the Opposition leader.
Political Interference and Manipulation
15.
(C) The issue of the alleged actions between Anwar and Saiful will play
out in court, and sodomy, even a consensual act, is a crime under
Malaysian law. The facts surrounding the case, however, make it clear
that the government's prosecution of the case is foremost a political
act against the Opposition leader.
The Malaysian government
does not aggressively prosecute cases of sodomy; we find record of some
55 cases since 1991, or an average of 3 per year. The vast majority of
such cases involve adults assaulting minors.
Anwar's
prosecution is not part of a morals campaign. The GOM does not
aggressively target non-heterosexual behavior; if it did so, a recent
cabinet minister, senior staff associated with PM Najib and other
prominent citizens linked to the government also would find themselves
under investigation.
16. (C) Aside from the immediate
comparison with Anwar's previous prosecution for sodomy, which was
grossly manipulated by former Prime Minister Mahathir, the indications
of political interference and manipulation in the present case are
compelling; much of the information is in the public realm. Collateral
reporting, not addressed here, provides further substantiation.
Najib connection:
Keeping in mind that Najib and Anwar remain bitter enemies, it is
striking that Najib met personally with the complainant Saiful prior to
the police report, and allegedly arranged for Saiful to have intensive
contact with senior police officials in the days before he filed the
complaint.
Senior officials' involvement:
From the very early stages, the senior-most officials in the government,
including then PM Abdullah, current PM Najib, cabinet ministers, the
AGO and national police chief (the latter two having played important
roles in Anwar's 1998-1999 flawed trials) and officials of the ruling
UMNO party have been intimately involved in decisions regarding the
case, according to Embassy contacts and publicly available sources.
Despite
the current toned-down government approach, and emphasis that the Anwar
trial is a normal law enforcement matter, senior-most executive and
UMNO party officials continue such a directing role.
Leakage of information:
Senior government leaders provided law enforcement information on the
case to leaders of Anwar's coalition partner, the Islamic Party of
Malaysia (PAS), in an unsuccessful attempt to split PAS from the
opposition. A recent internet report claims that the government has
provided some government-directed press editors with a "sneak preview"
of evidence against Anwar.
Public statements:
From the initial public reports of the complaint against Anwar in June
2008 to Anwar's election to Parliament in August 2008, PM Abdullah and
other senior leaders spoke publicly and frequently about Anwar's alleged
crime and the need for justice, and the case featured prominently in
the parliamentary campaign against Anwar.
There have been far fewer statements since September 2008, except during by-election campaigns.
Press:
The Government-directed mainstream press, which includes all major
dailies and all TV stations, provided extensive coverage of Saiful's
allegations while severely limiting reporting on Anwar's response during
the heated period of June-August 2008.
Alleged intimidation:
The police detained for questioning the doctor who first examined
Saiful, causing him to leave Malaysia temporarily out of concern for his
safety. Police also pressured the hospital in question to hold a press
conference to state that the doctor was not qualified to conduct such
an examination, according to our sources.
According to defence
lawyers, several of their witnesses have been threatened by police in an
effort to change their testimony. The Imam for the Federal Territories
(including Kuala Lumpur and the administrative capital Putra Jaya)
claimed publicly that he was forced to witness an "improper" Islamic
oath taken by Saiful; he was subsequently sacked by the Prime Minister's
Department.
Customized Legislation, the DNA bill:
The government hurriedly prepared a bill on DNA evidence, following
shortly after Anwar's refusal to provide a DNA sample at the time of his
arrest, which compels suspects to provide samples and allows
authorities to utilize previously stored samples in new criminal cases.
The government originally introduced the bill in August 2008 and voted
it through the lower house only on June 23, 2009; several steps remain
before it becomes law.
Public Scepticism
17.
(C) In the run-up to Anwar's August 2008 arraignment, public opinion
polling conducted by the Merdeka Center, Malaysia's most respected
opinion survey group, revealed that a preponderance of Malaysians
believed the charges against Anwar were unjust, indicating a deep public
scepticism regarding the government's case.
We understand
that new polling on this question will be released before the July 8
trial date. Pollsters have informed us that the new data continues to
reflect widespread public suspicions.
Reportedly, only 15
percent of ethnic Malays and 10 percent of Malaysians overall believe
Anwar's prosecution to be justified. Outside of government circles,
many Embassy contacts, including those who give credence to rumors of
Anwar's personal life, take it as a matter of fact that the government
is prosecuting Anwar for political reasons.
In a public
statement made on June 24, former Bar Council president (and U.S. Woman
of Courage awardee in 2009) Ambiga Sreenvasan urged the government to
drop the charges against Anwar in order to restore credibility to PM
Najib's ruling coalition.
Scenarios
18.
(C) When viewed as a political matter, a number of potential scenarios
for the Anwar prosecution present themselves; below we review three that
are most apparent. In these scenarios we assume that Najib will
exercise the deciding voice on how and whether to proceed, though he
also will need to weigh the opinions of other UMNO ruling party elites.
--
Conviction at all costs:
Based on an assessment that Anwar is a threat to UMNO's continued rule
at least at the time of the next national elections, Najib and UMNO
elites decide that the political costs of prosecuting Anwar are
acceptable and pursue the matter aggressively inside and outside the
courtroom with the overriding goal of convicting Anwar and removing him
permanently from politics.
While asserting that this is purely
a law enforcement matter, the government exerts political pressure as
necessary, accepting reputational risks in the process, and achieves a
conviction after months of high-profile drama in the courtroom. The
courts hear and reject Anwar's appeals in an expedited manner, well
ahead of the next national elections in 2012 or 2013.
This
scenario appeared to be in play during the initial months of the case
and in the lead up to Anwar's September 2008 deadline to overturn the
ruling coalition's majority; it has been less apparent since then.
Recalling the deep personal animosity between Najib and Anwar, and the
singular importance of Anwar to the opposition coalition, this scenario
remains plausible, even though Anwar's immediate threat to UMNO's rule
has passed.
--
Merits of the case, reputational damage:
In a second scenario, the government proceeds with the prosecution but
refrains from exerting undue pressure to achieve conviction, believing
that the evidence presented and/or the court proceedings themselves will
sufficiently damage Anwar's reputation and this will outweigh harm to
the Najib administration's credibility.
Conviction remains the
desired outcome, supported by sufficient evidence, but the government
accepts some risk of a final verdict of innocence after all appeals are
heard. This scenario rests on the assumption of sufficiently clear
evidence against Anwar that will swing public opinion in favor of the
government even in the event of an eventual acquittal. Absent greater
information on the government's evidence against Anwar, it is difficult
to judge the prospects for this scenario.
--
Withdrawal:
In a third scenario, Najib and UMNO elites decide that the government's
case is not strong enough to pursue, entails unacceptable political
costs, or is no longer necessary because of the diminished threat from
Anwar. The government withdraws the charges prior to the trial start of
July 8, or shortly after the trial begins, possibly under conditions of
"discharge not amounting to acquittal."
(Lawyers tell us that
such a discharge in theory would allow the government to reactivate the
case at a future time, thus maintaining this as a lever over Anwar.)
Najib,
confident that he can beat back an opposition challenge in the next
election, attributes the original decision to prosecute to the previous
administration of Abdullah Badawi and takes credit for respecting the
rule of law in this high profile case involving his determined political
nemesis.
In contrast to 2008, Najib's currently secure
position as UMNO leader and Prime Minister, along with Anwar's
diminished threat, make this scenario a political possibility, though
some UMNO elites and perhaps Najib himself may not want to give up the
opportunity to remove Anwar Ibrahim from politics once and for all.
KEITH
PETALING
JAYA: Kita president Zaid Ibrahim said the controversial church raid by
the Selangor Islamic Religious Department (JAIS) would not have taken
place had Article 11 of the Federal Constitution been upheld.
