Malaysian Maverick: Mahathir Mohamad in Turbulent Times Read online

  Difficulties arose for the prosecution when Azizan, under cross-examination, said he had not been sodomized. When pushed in re-examination, he changed his mind yet again and said he had been. He also changed the dates on which the alleged offences had occurred. The prosecution responded by applying, at the end of its case, to amend the four charges in a way that removed the need to prove the sexual acts took place in order to obtain a conviction on the corruption issue. Although the defence complained of an abuse of process that smeared Anwar and his secretary's wife, Paul saw no prejudice to the accused and allowed the amendment. He also expunged from the record all evidence relating to Anwar's alleged sexual misconduct and sodomy, which meant the defence was powerless to try and restore his reputation.

  After the defence closed its case, Anwar's lawyers filed an application seeking to disqualify Augustine Paul from continuing to hear the case. Anwar contended he had not received a fair trail and had "grave apprehension" that the judge might not bring an impartial and unprejudiced mind in weighing the issues and reaching a verdict. On top of everything else, it was claimed, the judge kept "interfering" when defence lawyers were questioning witnesses "to the extent of himself taking on the mantle of the prosecution". On 23 March 1999, when the parties were invited to sum up, the defence refused to do so until the application had been dealt with by the judge. He insisted the case continue. When the entire nine-member defence team maintained its refusal, Paul held its members in contempt of court. But on 25 March, the defence lawyers were informed that Paul would hear the application for his removal on 27 March, a Saturday. After listening to arguments from both sides, he dismissed the application.[76]

  The defence clashed again with the judge during the summing up. After Christopher Fernando, another defence lawyer, became embroiled in an exchange, Raja Aziz Addruse, Anwar's respected leading counsel, agreed that what Fernando had said was correct but expressed in the wrong way. He said he was sure Fernando did not mean to be impolite, adding, "That's his way of speaking." Replied Paul: "If the way of speaking is like an animal, we can't tolerate it. We should shoot him." Later, when Fernando sought to cite the judge for contempt of his own court, Paul said he had not intended to liken Fernando to an animal.[77]

  On 14 April 1999, 11 days after the trial closed with the defence refusing to make a final submission, Paul found Anwar guilty of all four charges and jailed him for six years on each, the sentences to be served concurrently. Contrary to usual practice in Malaysia, he dated the sentences from the day before conviction and not from the time of arrest to take account of the almost seven months Anwar had spent behind bars. He also dismissed a defence application for a stay of execution and bail pending an appeal. The sentences were regarded as harsh, since the "corrupt practice" with which Anwar was charged was, as one Kuala Lumpur-based foreign journalist wrote, "a minor transgression compared with the widely accepted corruption rampant throughout all levels of the Malaysian government".[78]

  Although Anwar's conviction was judged almost unanimously by international legal and human rights organizations as a miscarriage of justice, the Court of Appeal upheld the decision in April 2001. An appeal to the Federal Court was also rejected in July 2002. All levels of the Malaysian court system simply did not see, as expert observers did, violations of due process, mis-directions and unfair rulings by the judge and the admission of obviously inadmissible evidence.[79]

  On 27 April, less than two weeks after his conviction, Anwar was back in court charged with "carnal intercourse against the order of nature". Prosecutors proceeded with one of the five sodomy charges, the one allegedly involving Azizan, attempting to prove what had eluded them in the first trial. They chose not to go ahead with the counts allegedly involving four other people, three of whom — including Sukma Darmawan, Anwar's adopted brother — had publicly claimed they were coerced by police into falsely accusing Anwar of sodomizing them. The government, however, charged Sukma with sodomizing Azizan and with abetting Anwar to sodomize Azizan. Anwar and Sukma were tried jointly in the High Court.

  When Anwar's sodomy charge was first mentioned in a lower court, the date of the alleged offence was May 1994. At the preliminary hearing it had been changed to May 1992. As the trial got underway, the prosecution moved to have the charge amended to stipulate that the offence had been committed one night between January and March 1993. The reason for the latest switch was obvious: Anwar and Sukma had filed an advance notice of alibi, which showed that the apartment in which their offences were alleged to have been committed had not been completed for occupancy in May 1992. Anwar's lawyers accused the prosecution of acting in bad faith and sought to have the charges thrown out, but the judge, Ariffin Jaka, allowed the amendment.

  Still, the prosecution had to rely heavily on the uncorroborated testimony of Azizan, who had given contradictory evidence earlier. Azizan had told the first trial he was sodomized by Anwar on more than one occasion in 1992, but that he had "no problems" with Anwar after that. At the second trial, Azizan said he meant he had not been sodomized in Anwar's house since 1992. After Azizan admitted under cross-examination that he had changed the dates at the request of police, the defence attempted to get his evidence struck out on the grounds that he had contradicted himself and lied to the court. Ariffin rejected the defence request again, even though he himself had remarked at one point that "this witness says one thing today and another thing tomorrow".

  As in the first trial, one of Anwar's eight lawyers found himself in legal trouble over his conduct in court. Karpal Singh, a veteran advocate and opposition politician, suggested Anwar had been poisoned. He said a urine sample sent under a false name for analysis in Australia showed Anwar had a dangerous level of arsenic, 77 times above normal, and that someone might be trying to kill him. Calling for an inquiry, Karpal said he suspected some people in high places were "in all likelihood responsible for the situation". After Anwar was sent to hospital and tests showed his arsenic level was normal, without refuting earlier evidence that the level had been significantly elevated, the government slapped Karpal with a charge of sedition, which carried a maximum penalty of three years imprisonment.

  Given more leeway this time to develop Anwar's argument of a political conspiracy, the defence was able to get support from an UMNO member, Raja Kamaruddin Wahid. He testified that Dr. Mahathir's political secretary, Abdul Aziz Shamsuddin, had told him on 26 June 1998 about plans to destroy Anwar's reputation so he could never become prime minister. He said Abdul Aziz had said he long wanted revenge against Anwar, and the best way to tarnish him was to make up sodomy and adultery charges. Abdul Aziz had said he was paying Azizan and Ummi Hafilda Ali to invent stories about Anwar, the witness said. Another witness, Nor Azman Abdullah, who said he once had an intimate relationship with Ummi, told the court she had admitted to pressuring Azizan to accuse Anwar of sodomizing him. Nor Azman said Ummi had told him she contributed to the book, 50 Dalil, which was sponsored by prominent UMMO members. Ummi had said that after Anwar was brought down, she was to be given a RM10 million business contract. Nor Azman said Ummi had confirmed she wrote the original letter to Dr. Mahathir about Anwar, but said it had been altered by Abdul Aziz Shamsuddin, the prime ministerial aide.

  But Justice Ariffin Jaka was unimpressed and said conspiracy was not an issue "in this case". On 8 August 2000, three weeks after the trial closed, he found Anwar guilty of sodomy and sent him to jail for nine years, fixing the sentence to begin when he had served the six years for his earlier conviction. Sukma, 39, was given six years imprisonment and two strokes of the cane on each of two charges, his jail terms to be served concurrently. Anwar, 53, escaped the cane because of his age.

  After the Court of Appeal upheld the judge's decision in April 2003, attention focused on the part played by the judges who were involved in each stage of Anwar's legal ordeal. The three judges who heard the appeal were relatively junior in the Court of Appeal, and there was no explanation as to why more senior judges were bypassed.[80] When th
e extremely junior Justice P.S. Gill was selected to chair the panel, Malaysia's chief justice was warned privately it was being speculated in legal circles that Gill had been promised a promotion to the Federal Court in return for dismissing the appeal.[81] In any event, he was quickly promoted to the Federal Court. Similarly, Augustine Paul and Ariffin Jaka were elevated to the Federal Court, leap-frogging colleagues with longer and stronger records. Paul's bright career prospects seemed undimmed by a Federal Court decision that overturned lawyer Zainur Zakaria's conviction for contempt and prompted a judicial comment that Paul had acted more like a prosecutor than a judge in Anwar's first trial.[82]

  In a statement after the Court of Appeal ruled against him on sodomy, Anwar attacked Ariffin Jaka, Augustine Paul and the three appeal court judges for having "wantonly sold their souls for worldly gains". He said the public believed these judges were "hand-picked, servile and compliant", and had been "promptly and generously rewarded with promotions, unfairly bypassing independent judges of integrity".[83]

  International and independent local legal experts concurred that the two trials were deeply flawed and that the judges were culpable. Param Cumaraswamy, a Malaysian who at the time was United Nations Special Rapporteur on the Independence of Judges and Lawyers, said there was "no hope for judicial independence and impartiality" while some judges were prepared to compromise the values of their high office in politically sensitive cases.[84] In a report for the Australian Bar Association and the International Commission of Jurists, Queen's Counsel Mark Trowell said the Malaysian justice system "failed to act independently from the executive arm of government", which was largely identified with Dr. Mahathir's interests.[85] A joint report by a mission representing four international legal organizations agreed that executive influence severely compromised the judiciary during Anwar's trials.[86]

  On 2 September 2004, precisely six years after Anwar was fired and almost a year after Dr. Mahathir had retired, the Federal Court overturned the former deputy prime minister's sodomy conviction. In a majority decision, the court found that Sukma's confession was inadmissible because it was "involuntary", and Azizan was an unreliable witness whose testimony had not been corroborated where he was obviously an accomplice. Two of the three judges concluded that the prosecution had not proved its case beyond a reasonable doubt, and both Anwar and Sukma should have been acquitted without having to enter a defence. Subsequently, after Sukma won a retrial for his original conviction, all charges against him were withdrawn. A similar appeal by Munawar Anees, who had become an American citizen and was living in France, was still pending in early 2009.

  Most of the experts agreed that Anwar was exonerated only because Dr. Mahathir had left the scene and his successor, Prime Minister Abdullah Badawi, had made it clear he would not try to impose his will on the court. "Finally, justice has been done," said Param Cumaraswamy. "Since 1988, under the Mahathir regime, the judiciary did not have the courage to dispense justice independently."[87] Mark Trowell said the judiciary "simply failed to respond fairly and impartially to Anwar's complaints" until Dr. Mahathir's influence had been lifted by his departure from office. "Only then could the abuses and injustices of past legal proceedings be rectified," he said.[88] Anwar also credited Abdullah with keeping his hands off. "You've got to recognize the fact that his predecessor wouldn't have made this judgment possible," he said.[89]

  But Anwar's vindication was qualified as well as belated. The two Federal Court judges who cleared him and Sukma of sodomy said there was evidence to confirm they had been involved in homosexual activities, though the judges failed to provide any explanation of how they had reached that conclusion. Their comment was derided as political by critics: "acquitted but guilty".[90] Anwar was freed immediately as he had already completed his sentence, reduced to four years for good behaviour, for the corruption offence. One final attempt to get the Federal Court to reverse its own decision allowing the corruption conviction, based on new evidence and a constitutional point, failed. The five outstanding charges against Anwar — one of corruption, four of sodomy — were dropped. He was barred from holding political office and sitting in Parliament until April 2008, five years after completing his sentence. The only way for an earlier return was to obtain a pardon from Malaysia's king, which required an admission of guilt, and that was out of the question for Anwar. He was adamant he was innocent.

  Despite repeated efforts, Anwar was never able to confront Dr. Mahathir in a courtroom, where they would be sworn to tell the truth. Dr. Mahathir said he would have liked to have given evidence so he could explain "how he became convinced" by the allegations against Anwar, but he ducked every opportunity to do so. In the first trial, the defence said it intended to call the prime minister as a witness, but dropped the idea after complaining that Dr. Mahathir refused to make a written statement before his planned appearance. The judge in the second trial, supporting Dr. Mahathir's resistance to a subpoena, ruled that he would not be a material witness. Although Anwar's lawyers appealed to both the Court of Appeal and the Federal Court, they declined to reverse that ruling. After he was cleared of sodomy, Anwar attempted to sue Dr. Mahathir for defamation for continuing to call him a homosexual. Branding the action frivolous and an abuse of the legal process, Dr. Mahathir's lawyers persuaded the High Court in 2007 to reject the RM100 million suit. Anwar's appeal was still pending in early 2009.

  If there was any consolation for Anwar in the ruins of a political career, it was that the conviction had little effect on his standing. After his release from prison and spinal surgery in Germany, he was treated as a wronged politician rather than a criminal who had served his time, in keeping with Amnesty International's adoption of him as a prisoner of conscience and a statement by a Human Rights Watch official that Anwar was the victim of a "political vendetta" by Dr. Mahathir. Anwar accepted attachments at three prestigious universities, Oxford in England and Georgetown and Johns Hopkins in the United States, and was in demand on the international lecture circuit, before returning to fulltime politics in Malaysia in 2006. He was touted as a possible head of the United Nations in 2007, and though he was never a serious candidate to replace Kofi Annan, the speculation reflected the esteem in which he was still held.

  For Dr. Mahathir, Anwar's political evisceration carried a steep price. The entire episode exposed a pattern of political manipulation of Malaysia's key state institutions, among them the police, public prosecutor's office and the judiciary. Said Awang, the Special Branch director, testified that he might lie under oath if instructed to do so by the prime minister, and acknowledged a situation could arise where he might have to do something illegal if requested by Dr. Mahathir or the police chief.

  Court testimony also reflected on Dr. Mahathir personally, suggesting he had blocked a corruption investigation only months before Anwar was arraigned for allegedly doing the same thing. Shafie Yahya, the former head of Malaysia's Anti-Corruption Agency, said Dr. Mahathir had told him in June 1998 to stop investigating Ali Abul Hassan Sulaiman, Director General of the Economic Planning Unit, the powerful agency that awarded privatization projects. Ali Abul Hassan was made governor of Bank Negara the day before Anwar was dismissed. The Anti-Corruption Agency, like the Economic Planning Unit, was part of the Prime Minister's Department. Shafie told the court that after he had responded to an official complaint and found large amounts of cash in a drawer in Ali Abul Hassan's office, he was called by Dr. Mahathir, who scolded him and told him to close the case. According to Shafie, Dr. Mahathir had said, "How dare you raid my senior officer's office", and accused Shafie of "trying to fix" Ali Abul Hassan. Shafie said he was disillusioned by Dr. Mahathir's intervention and wanted to resign, but his wife persuaded him to serve out the remaining months of his contract.[91]

  If Shafie's account was untrue, as Dr. Mahathir claimed, Shafie should have been charged with perjury. But he was not. Nor did the police make any attempt to clear Dr. Mahathir's name or investigate him for a possible crime, though years later an o
fficial said the attorney general had decided not to pursue the matter because of inconsistencies in witnesses' statements and a lack of supporting evidence.[92] Lawyers who inquired informally in the attorney general's department were advised to be realistic — nobody would dare interrogate the prime minister.[93]

  Notes

  Raphael Pura, "Anwar Alleges 'Conspiracy' in His Dismissal", Asian Wall Street Journal, 4 September 1998.

  John Funston, "Political Careers of Mahathir Mohamad and Anwar Ibrahim: Parallel, Intersecting and Conflicting Lives", IKMAS Working Papers (Institute of Malaysian and International Studies, Universiti Kebangsaan Malaysia) no. 15 (July 1998): i-iv, 1-32.

  Ibid.

  Interviews with Tunku Abdullah Tuanku Abdul Rahman, 22 March 2007; Mahathir Mohamad, 31 March 2008; and Anwar Ibrahim, 21 May 2008.

  Interview with Mahathir Mohamad, 31 March 2008.

  Stephen Duthie, "Malaysia Wonders if Anwar, Mahathir Can Make a Team", Asian Wall Street Journal, 1 October 1993.

  Daim was finance minister, while Sanusi was agriculture minister and UMNO secretary general.

  John Funston, "Political Careers of Mahathir Mohamad and Anwar Ibrahim: Parallel, Intersecting and Conflicting Lives".

  Stephen Duthie, "Malaysia Wonders if Anwar, Mahathir Can Make a Team".