August 6, 2008

The Malaysian government should immediately withdraw politically motivated charges against opposition leader Anwar Ibrahim, Human Rights Watch said today. Police served Anwar, who is running for office, with an order to appear in Kuala Lumpur Sessions Court on August 7, 2008, under a colonial-era law that criminalizes homosexual conduct.

But several instances of misconduct around the investigation into allegations that Anwar had sexual relations with a male former aide show the charges are aimed at preventing Anwar from leading a new government. Police handled the inquiry improperly, while government officials interfered in it and tried to publicly intimidate and embarrass Anwar. On August 26, Anwar is due to run in a by-election for the constituency vacated on July 31 by his wife, Dr. Wan Azizah Wan Ismail. On August 6, police ordered him to appear in Kuala Lumpur Sessions Court to face charges under section 377 of Malaysia’s criminal code, which criminalizes “carnal intercourse against the order of nature.”

“The Malaysian government appears to be manipulating the legal system to shore up support for its continued rule and undermine the opposition,” said Brad Adams, Asia director at Human Rights Watch. “This case is really about preventing challenges to the government’s rule.”

There is no legal impediment to Anwar’s running in the by-election, but denial of bail would prevent him from campaigning. Although a “sodomy charge” is a non-bailable offense, common practice has been for bail to be granted. Given Anwar’s high public profile, Human Rights Watch said that bail should be granted, as there is no evidence that he is a flight risk or will intimidate the complainant or any witnesses.

The police investigation into the allegations against Anwar, who was arrested on July 18 and interrogated about the accusations, has lacked transparency and impartiality. Police refused to publicly release the first information report filed by the complainant, Saiful Bukhari, as required under Malaysian law. This has fuelled suspicions that the document may have been altered after Anwar’s arrest.

Even more damaging to the credibility of the police investigation and the Malaysian government has been their response to a medical report by the first doctor to examine Saiful. The report of an anal examination conducted by a doctor at Hospital Pusrawi, and leaked on the internet on July 29, found no evidence of “sodomy.” Kamaruddin Ahmad, the hospital’s medical director, verified the report as authentic, but said the doctor who examined Saiful was a general practitioner, not a specialist, and that the examination was not “sodomy-related.”

Deputy Inspector General of Police Ismail Omar dismissed the report’s relevance, describing it “as an attempt to sabotage police investigations” and confuse the public. Ismail also told reporters that police are considering investigating news sources that leaked the medical report.

“The authorities seem more concerned with investigating how the medical report was leaked than with the fact that its content doesn’t support the criminal charges,” said Adams.

The government of Prime Minister Abdullah Badawi has faced serious challenges from opposition parties since the national election in March 2008 in which the ruling Barisan Nasional (National Front) lost its two-thirds majority in the parliament and control of five states. Public opinion polls in Malaysia indicate little support for the prosecution of Anwar. An opinion poll released on August 1 by the Merdeka Center for Opinion Research found only 11 percent believed the sodomy allegations, while two-thirds believed the charges are politically motivated. Only a third expressed confidence that institutions such as the judiciary, the police and the attorney-general’s office would perform their roles in Anwar’s case in a fair and transparent manner.

“The charges leveled against Anwar provide the government a convenient distraction from current political crises,” said Adams. “Pursuing this case will only undermine the credibility of the police, the prosecutor and the government.”

The sodomy 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 urged the Malaysian authorities to repeal those provisions while replacing those on non-consensual sexual acts with a modern, gender-neutral law on rape.

Anwar’s previous trials in 1999 and 2000 on corruption and sodomy charges raised serious concerns about judicial independence and fairness. The courts refused bail, prevented Anwar from raising certain defenses, disallowed witnesses from testifying, and improperly threatened defense lawyers with contempt proceedings. Then-Prime Minister Mohamad Mahathir even went on television during the trial to declare Anwar guilty.

If the charges are not dropped, trial proceedings should be fair and public, and conducted by an independent, impartial and competent court that meets international due process standards, Human Rights Watch said. This includes selecting the judge at random according to the standard practice in Malaysia. There should be no shadow of suspicion that the selection of the judge was fixed, as in the previous trials.

HUMAN RIGHTS WATCH