A Lawyers Perspective of the Anwar Sodomy Allegation

The following is a response to an article by lawyers Tommy Thomas and Ambiga Srinivasan which appeared in the NutGraph on or about 5 July 2009.

That article in the Nutgraph deals with what Thomas and Srinivasan perceived to be anomalies and errors, possible injustices and discrepancies in facts and the law in the trial of Anwar Ibrahim former deputy prime minister of Malaysia.

That commentary by the two lawyers appears to suggest an injustice against Anwar Ibrahim the defendant.

Our response here attempts to analyses what Anwar’s problems are in how he has dealt with the allegations against him is on the one hand; whilst also analysing what lawyers Tommy Thomas and Ambiga Srinivasan (lawyer and former president of the Malaysian Bar) have to say about the matter the Nutgraph article dated 5 July 2009. The Thomas Srinivasan article appeared in the Nutgraph prior to the trial of Anwar on charges of sodomy.

OVERVIEW

Anwar Ibrahim’s biggest problem lies with his disregard for the law and legal procedure in his native Malaysia. He raises his ire against the courts and the law whenever he is faced allegations of impropriety instead of focusing on a proper defence.

The allegations against Anwar today are amongst other things are, that he raped (our words) a former political aide another male. Anwar a long serving parliamentarian in Malaysia appears to believe that he is above the law (our view), indirectly denies his bisexuality (inspite of being outed by lawyer and political ally in the opposition Karpal Singh). Further Anwar has a tendency to hurl insults at the courts and judges in the process of defending himself on public forums outside the courts.

On several previous occasions Anwar has demonstrated his utter contempt and disregard for the law with his politically motivated attacks against individuals like the former Chief Justice of Malaysia in public press conferences. 

In 2009 Anwar publicly attacked the former Chief Justice of Malaysia by producing (at a press conference he called for the purpose) an inadmissible and speculative document of suspect origin and provenance (“Lingham Tapes”) which no competent court would have admitted into evidence against the former chief justice. The circumstances surrounding the allegations of improper conduct against the former chief justice is a case underpinned by the apocryphal tapes purportedly implicating the former chief justice of Malaysia in corruption.

And regardless of how despised in some circles some individuals, including the judiciary may be they like everyone else are entitled to due process of the law, not the assaults and insults that politicians like Anwar inflict upon them in attempts at gaining political personal mileage.

Of all the people who comment critically or adversely on issues of the law, who ought to know better about the situation with Anwar and about the need for being impartial, are lawyers Ambiga Srinivasan and Tommy Thomas.

These are two advocates and officers of the High (or is it Supreme Court) of Malaysia. Both Ambiga and Thomas are  leading lights of the legal profession in Malaysia. Yet they demonstrate an abject level of  ignorance if not contempt for Malaysia’s laws and its courts in their public statements. By their conduct Ambiga and Thomas appear to have lent support to Anwar’s treacherous assaults on the courts, judges and the legal system in Malaysia. It is an outrage which should not be tolerated by anyone, their peak professional body the Malaysian Bar included.

There are recent remarks attributed to Anwar about his intention to take his case (the charge of sodomy against him) outside of the Malaysian courts to an international forum to seek redress. Again “to hell with municipal courts of Malaysia”.

Whose interests does Anwar really serve? The vice of Anwar’s actions in this regard are to be found in his failure to exhaust local remedies and tribunals first before he implements his threats to take this matter to international judicial forums.

THE AMBIGA TOMMY THOMAS ARGUMENT AND INTERPRETATION OF THE RULE OF LAW

What needs to be examined here in view of Anwar’s on going conduct in his trial is why two prominent lawyers in Ambiga and Thomas, both of whom make copious references to the concept of the “Rule of Law”  (Nutgraph 5 July 2009) in their commentary, fail to see why publicly and partially championing interference in a matter presently before the courts is a breach of that revered legal doctrine the Rule of Law.

Is this because of Anwar’s high political profile? his social and ‘moral’ standing in sections of the community, that Thomas and Ambiga seek to mount what is essentially a defence of Anwar in this manner?

The legal and constitutional doctrine of the Rule of Law has several interpretations. Each arising from a diverse number of thesis proffered by a number of learned scholars over the years (not all of who got it right: Montesquieu). There is of course the commonly prescribed Dicean concept of the Rule of Law for students of law, generally accepted as  a common definition of the doctrine to a lay person. There are various other thesis and interpretations of the doctrine in seminal works by Austen, Bentham, Montesquieu. More recently of course the works of the American jurist Cardozo is instructive. All of them have advanced their own  individual interpretations of the doctrine although not all in conformity with the views of the others. The one common thread that runs through all of these individual dissertations on the doctrine of the Rule of Law is the idea that everyone regardless of who they are (and subject to legislative exemption) is equal before the law.

The doctrine in all its forms equally embraces the other’s legal theory and doctrine of “the separation of powers” in government. The separation of powers doctrine falls within or is complimentary to the concept of the Rule of Law.

But arguing the validity of each of these individual interpretations of the doctrine is an exercise in polemics and semantics. It is academic when considered in the context of the Nutgraph article on Tommy Thomas, Ambiga and Anwar.

What is critical is that neither Ambiga, Tommy Thomas nor Anwar himself has made out a case for the defence that justifies aborting proceedings already afoot or compelling the Attorney General to discontinue prosecution of Anwar on charges of sodomy.

Grappling with some of the issues raised by Tommy Thomas and articulated by Ambiga in the article in the Nutgraph 5 July 2009, the question arises as to why the trial of an opposition leader (or any other prominent or public figure for that matter) is ‘not in the national interest’ or as Ambiga and Tommy Thomas suggest, is a breach of the Rule of Law?

Why should any criminal trial necessarily be conducted in or against national interest at all if the Rule of Law should apply? That a trial of Anwar is against national interests appears to be  the thrust of Tommy Thomas’ argument.

ATTACK ON THE PROSECUTION (AG)

In attacking the conduct of the prosecution (the AG) in the first Anwar trial for sodomy, Ambiga argues that a denial of bail was somehow an injustice to Anwar. Why? She does not say.

Well if that were the case, then it would be legitimate to ask why Ambiga as president of the Malaysian Bar did not during her term as president  of the bar (and presently) argue for a prohibition on the of remanding prisoners altogether.  And why did she not argue for an abolition for the requirement for bail pre trial? Why does the exception only apply to Anwar and become an issue for her to argue now? Is it because of Anwar’s high profile or the fact he is a self proclaimed leader of a fragmented opposition of which Ambiga and Thomas are both openly supportive of against the Barisan government? is that reason enough for Ambiga to propose a separate set of rules (selectively as in this case) when it comes to the application of the rules of justice (and the Rule of Law) and the need in some circumstances only to detain suspected offenders as is presently prescribed by law?

Ambiga fails to balance her argument that failure to grant bail is somehow not in the national interest or a breach of the law. More embarrassing is her failure to draw a link between the argument of the Rule of Law she and Thomas raise in the Nutgraph article and special treatment for Anwar.

Ambiga then embarks on a moral tirade on trivial and sensational matters such as the exhibiting of the stained mattress in the Anwar case, which in reality is nothing more of a variation to the theme of that stained blue dress Monica Lewinsky wore at her tryst with Clinton, then President of the USA. What Ambiga complains of in her argument is a piece of evidence for the prosecution that is vital to establishing proof of Anwar’s alleged sodomy of his political aide.

The defence of Anwar and counter arguments continue with Thomas’s preposterous statement that, “if Anwar were not a potential prime minister but ordinary citizen he would not face this prosecution” is an absurdity that should not go unanswered. Thomas is after all arguing the Rule of Law in this matter. Now he makes distinctions which suggests he does not understand the the doctrine of the Rule of Law.

The inference one is invited to draw from Thomas’ statement in this regard can be taken to also mean that, potential prime ministers, ministers and other dignitaries charged with rape, conspiracy, sodomy (in this particular instance) or other major offences in Malaysia should have the charges against them dropped ‘because it is not in the national interest‘. Once more is Thomas really supporting the Rule of Law in his argument?

Such statements made without thought, foundation on fact or law do little to serve the causes of justice, the Rule of Law, Anwar or the argument that the state is corrupt or the that prosecution is politically motivated in its prosecution of Anwar.

Much like Ambiga, Thomas offers feeble reasons as to why the trial should not go ahead including implications for ‘Malaysia’s reputation in the eyes of the outside world’ as a valid consideration. Does the outside world really care about Anwar’s trial apart from the discredit neo con Paul Wolfowitz and his mates who set Anwar up to overthrow a government outside the ballot box? Thomas and Ambiga offer no evidence to justify this claim.

What legal or moral authority does Thomas cite to support his argument of why the law should not be allowed to take its course because of what others think?: or why the law should not be applied equally to a man of high office like Anwar Ibrahim as it should and does to the common citizen in Malaysia? Would that argument of itself not be a breach of the concept of the Rule of Law Thomas and Ambiga argue for?

THE TRUTH AND THE MEANS OF ESTABLISHING IT

The truth of Anwar’s guilt or innocence lies deep in the minds of Anwar and his accuser alone. It is in the nature of such allegations involving two persons and their conduct towards each other in private.

In order that the truth of the allegations be known and the veracity of the claims and counterclaims made by each of the defendant and the complainant in such a matter be properly and fairly tested, their individual testimony and other corroborative evidence they rely on has to be put to an open court or at least a properly constituted forum recognized at law first.

Such is the price all citizens pay for the freedoms and rights they enjoy in a democracy or civilized society which Malaysia is.

In concluding, I draw to the attention of both Ambiga, Thomas and the respective parties to this conflict the glaring omission by counsel for either side to deal with the issue of rape which inevitably must arise out of the alleged commission of the act of sodomy. It is a logical conclusion to draw. Anwar’s aide who brings the charge of sodomy against Anwar is clearly saying he did not consent to the act of sodomy against him by Anwar as he alleges.

A FORGOTTEN ASPECT OF THIS MATTER

No one has yet raised the vexed question of whether or not the sodomy complained of was consensual. If there was no consent, there is the double offence of rape by sodomy by and by implication that aspect of the complaint has not been pursued by either prosecution or the defence.

If it is not alleged that the complainant was raped, then he may well have been complicit in the commission of the offence of sodomy as a passive participant in the offence. And if that is the case, then perhaps there are also further offences that potentially arise to be investigated against the alleged victim. He may have been party to the offence of engaging in sodomy, using the offence to further achieve some collateral advantage or outcome, political or personal against Anwar.

Unfortunately the comments of Ambiga and Thomas which attempt to implicate the courts and the Attorney General in something sinister in this trial without any evidence to support and their paucity of understanding and knowledge of the Rule of Law is unhelpful. It may in fact amount to a breach of professional conduct and ethical standards on their part as lawyers.