Updated 3.20pm on 30 June 2009
The following is an excerpt of a public lecture by Datuk Ambiga Sreenevasan titled Democracy, Law and Human Rights in an Era of Globalisation that was delivered on 23 June 2009 to commemorate the 25th anniversary of the Chevening Scholarship Programme
THE Datuk Seri Anwar Ibrahim prosecution is seen by many as the political persecution of the leader of the opposition. The question is, can we, as a nation, go through a second Anwar prosecution?
Lawyer Tommy Thomas had this to say in a 28 July 2008 article titled A Second Prosecution of Anwar Ibrahim — Is it in the national interest?: “The starting point is the previous prosecution of Anwar for sodomy in 1998[,] which imposed incredible strains on our legal system, and made Malaysia the laughing stock in the legal world.
“It would be sufficient to remind ourselves of the conduct of the prosecution in the 1998 case, the unfair publicity given by the mass media, the denial of bail, the ‘irrelevant’ rulings by the trial judge, the conduct of the trial itself, the amendment of the charges, the shameful parading of the mattress, the expungement of ‘inconvenient’ evidence, the finding of guilty, the lengthy sentence, the appeal to the Court of Appeal, and finally the appeal to the Federal Court.”
I personally recall being utterly horrified and disgusted by the charges against Anwar the first time round. The initial charges carried wording I cannot repeat in good company. I also remember the terrible injustice done to Sukma Darmawan. And then to Dr Munawar Ahmad Anees, who to this day has not been vindicated by our courts although they have had the opportunity to do so. We must not forget these and other unfortunate people who all became innocent victims in this political war against Anwar.
The whole prosecution was a disgrace. I remember someone saying then that the trial robbed this country’s citizens, in particular our children, of their innocence, as we had a daily fare of sodomy, semen-stained mattresses and the like.
Thomas argues, and I agree, that since those disgraceful events, the judiciary has taken steps to repair itself. He argues that a second prosecution would (I’d say could because, of course, the court could throw out the case) undo all the repair the judiciary has carried out to improve its image.
And it is no coincidence that Anwar is the opposition leader who has brought sweeping changes to the political landscape.
Tommy ThomasThomas argues: “If Anwar were not a potential prime minister, and only an ordinary citizen, he would not face this prosecution. It is as simple, plain and obvious as that.”
The prosecution, Thomas argues, is economic and political suicide. He adds that the people of Malaysia are deeply divided on this issue, and that Malaysia’s international image will, no doubt, suffer.
He then concludes with these words: “History is replete with examples of leaders who refused to learn from past mistakes, and were doomed to repeat them. It would be a tragedy of ancient Greek proportions if our leaders do not learn the lessons from 1998.
“It is abundantly clear that all the factors point in one direction: it is not in the public interest to subject the nation and its citizens to the trauma of a second trial…”
Ultimately, the powers-that-be must appreciate the consequences of this prosecution. If they win, they lose; if they lose, they lose. Actually, the nation loses. If you were a betting person, what would you do with those odds?
One thing must be made clear, it is my opinion that what we are doing to Anwar Ibrahim is starkly similar to what is happening to Aung San Suu Kyi. I ask, show me the difference between the two. I ask, how can we condemn the latter and do the former?
I call on the government to immediately review the Anwar prosecution in the public interest and because it is the right thing to do. If the government takes this step, it will certainly regain some credibility.
The AG’s role
It is important in our justice system to appreciate the duties and responsibilities of the Attorney General, particularly in criminal prosecutions.
The Attorney General cannot act arbitrarily. In a judgment relating to the Attorney General’s discretion over prosecutions, the Federal Court held that:
“The public of whose interest he [or she] is the guardian has a right to expect him [or her] to act honestly, without fear of powerful national and local figures or of the consequences to him [or her] personally or politically, and without favouring his [or her] relatives and friends and supporters, his [or her] principal concern being to maintain the rule of law so that there will be no anarchy and to maintain standards in public life and the private sector.”
Aung San Suu Kyi (Public domain; source:
Wiki commons) Our institutions must work to regain their credibility. I started my speech with a quote from Aung San Suu Kyi that fear of losing power corrupts those who wield it. I hope this is not what we are seeing today in Malaysia.
Rule of law
You would have appreciated by now that democracy, rule of law and human rights are all interlinked. The essential distinction between rule of law and rule by law must be noted.
Many dictatorships or military regimes can quite honestly say that everything that they do is in accordance with laws they have passed. Does our Internal Security Act, for example, accord with the rule of law? No — that is rule by law.
Laws passed by Parliament must accord with the rule of law. They must encompass basic fundamental liberties and values. These laws must be acceptable to a large number of people. They must be fair.
In Malaysia, even after 50 years of Merdeka, there are still in existence four declarations of emergency! We still have the archaic Sedition Act, Official Secrets Act, and Printing Presses and Publications Act. It is time for us to review all these pieces of legislation.
Within our borders
So, if there are human rights abuses outside our borders, can we in today’s world fail to act? The answer is no. We must reach across our borders on issues of human rights.
But more important is what we do within our borders. Do we have the right to condemn apartheid, as we did, when we allow racist rhetoric to abound in our country? What about the right to condemn Aung San Suu Kyi’s suffering while we treat Anwar Ibrahim the way we do? Can we criticise the kidnapping and disappearance of people overseas when it happens in our country?
We must have the moral authority to criticise others by ensuring we do not behave in the same way. 
Datuk Ambiga Sreenevasan is former Bar Council chairperson and a recipient of the US Secretary of State’s 2009 Award for International Women of Courage.
2nd class says
If the opposition suggests that Najib must go through a trial to prove his innocence in the Mongolian [murder] case, why not Anwar?
Bob Mali says
The issue is the current PM does not tolerate differing views. Coming from a privileged family, he is not used to challenges. It is sad, considering that he is a Muslim and a Muslim should uphold justice and fairness to all irrespective of belief.
Sam says
Well said, Datuk. This is a gem of wisdom from you.
Shane says
“Our institutions must work to regain their credibility. I started my speech with a quote from Aung San Suu Kyi that fear of losing power corrupts those who wield it. I hope this is not what we are seeing today in Malaysia.”
I can recollect Daw Suu’s response when asked by someone about the SLORC wherein she detested the junta for its hypocrisy – the blatant double-standard of equivocation and practice.
That is similar to what the Malaysian government and its branches are doing all along, and every now and then.
Many are suggesting that the government of the day could be voted-out in the next GE. I have a different take on this. If the SLORC never recognized its 1998 landslide GE defeat, and if President Robert Mugabe of Zimbabwe did the same thing in his country’s 2008 GE, how would Malaysia be different? After all, the Perak saga has demonstrated that “they” will do anything to stay in power (talking about the next GE).
Don’t ever forget that the admission of Myanmar was spearhead by none other than the Dr Mahathir Mohamad under the guise of a constructive engagement and dialogue where in actuality Asean was formed to invigorate its policy of “non-interference”. It’s like saying that when the East Timor at the time was annexed by Indonesia and its citizens killed by the Indonesian armies, all Asean members said nothing and rebuked any Western countries which spoke against the abominable crimes against humanity.
PM says
Strangely enough, and despite the fact that most right-minded people are of the opinion that the judgement was most ridiculous and that Anwar was unfairly dealt with, the parties involved in dispensing this injustice were all promoted.
harwin says
The voice of reason and hope for 1Malaysia: Clear and present!
Kudos to Datuk Ambiga! 1Malaysia needs you; do carry on without fear or favour even though you are no longer the chair of the Bar Council.
D. Iaspora says
Those who are already experiencing the losing of power are not going to easily let go of the tail of the ISA and other notorious so called laws which allow the BN and its cohorts the comfort of locking up or hammering those who stand in its way. However, as history has shown, the inherent spirit of man for freedom and the liberty of life is entrenched in the soul of all beings. The day will come and must come to roll away from our nation’s face the evil that now bestrides it like a Colossus. As generations change, viewpoints will change.
Aston says
My goodness, what kind of mentality does an ex-Bar president have? Obviously pro-PKR or up to something.
What if [Anwar] is really a bisexual? Ask around, particularly his old pals or uni mates. A wrong is a wrong, stop talking about rights; it is better to maintain a strong and peaceful family.
henry chang says
Those words mean nothing, however strong and truthful the messages they convey. BN is on a massive appeasement campaign, but basically nothing changes — as far as Umno is concerned. Dunno about those “hangers-on” like MCA and Gerakan. But it’s all same-same beneath the surface of that 1Malaysia etc. etc. Just words. My take? Just wait for Sodomy 3!
Andrew I says
Er, 2nd class, the difference is one has already gone to trial and the other will never go to trial, unless …
friend says
The enemy of my enemy is my friend.
juju says
@2nd class and Aston
Both of you are missing the point. It’s not a question of Anwar’s sexual preferences or his “innocence”, it’s a question of the abuse of law and a complete and utter disregard for human rights.
It’s the question of whether our national psyche and international reputation can take another flim flam trial with all its sordid details and obvious reminder that our leaders in their glorious self-interest will do anything to get what they want.
And Aston, go read Dr Anees’s statement linked up there, and see whether his rights violation led to his family being “strong and peaceful”.
Gopal Raj Kumar says
Anwar’s biggest problem is his disregard for the law and procedure. He raises his ire as legitimate defences against allegations in a court of law of his personal conduct through politically motivated attacks against individuals like the former chief justice using an inadmissible speculative document of suspect origin and provenance which no competent court rightfully would have admitted into evidence like the Lingam tapes. And regardless of how despised in some circles individuals within the judiciary may be, they like everyone else are entitled to due process of the law and not the assault that politicians like Anwar apply in their attempt to gain political mileage alone through an abuse of the “Rule of Law”. And of all people Ambiga and Tommy Thomas, both advocates and officers of the High (or is it Supreme Court) of Malaysia, should know better.
There were also remarks attributed to Anwar recently of his intention to take his case (the charge of sodomy against him) outside of the Malaysian courts. Again “to hell with local laws”. Whose interests does Anwar really serve?
What’s necessary to be examined here is why Ambiga or Thomas who make copious references to the “Rule of Law†fail to see why their championing of interference in a matter before the courts by the accused, because of his high profile and his social and political standing is not a contradiction of the position they adopt and proffer in this matter.
The concept of the Rule of Law has several meanings. There is the commonly prescribed Dicean concept of the Rule of Law, there are interpretations and other seminal works on the same theory by Austen, Bentham, Montesquieu and more recently of course the American jurist Cardozo. All had their own versions of the theoretical concept.
The common thread that runs through all of the individual dissertations of these jurists on the subject is the idea that everyone is equal before the law. The concept in all its forms also embraces the theory of the separation of powers within the concept of the Rule of Law in some form at least. All of which also recognize the need to prevent the concentration of power in the hands of any of the single branches of government that would result in a tyranny. But arguing these concepts too is an exercise in polemics, semantics and is academic in this context perhaps. What is important is that neither Ambiga, Tommy Thomas nor Anwar himself have made out a case for the defence that justifies aborting proceedings already afoot or compelling the Attorney General to discontinue his prosecution of Anwar.
Grappling with some of the points made by Tommy Thomas and articulated by Ambiga in her article, the question arises as to why the trial of an opposition leader or other public figure is not in the national interest or as they see it, a breach of the rule of law? Why should any criminal trial be in or against national interest at all?
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 why was Ambiga as president of the Malaysian bar not arguing then for a prohibition on remanding prisoners altogether? Why does the exception only apply to Anwar? Is it his high profile or the fact he is a self proclaimed leader of a fragmented opposition? She 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 and special treatment for Anwar.
Ambiga then embarks on a moral tirade on trivial and sensational matters such as the display of the mattress in the Anwar case which in reality was nothing short of a variation to the stained blue dress Monica Lewinsky wore at that tryst with Clinton, then President of the USA. What she complains of is about a piece of evidence that is vital in such matters.
The defence and legal counter arguments continue with Thomas’s 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.
The inference one is invited to draw from Thomas’ statement in this regard can be taken to also mean that, only potential prime ministers are charged with rape, conspiracy, sodomy (in this particular instance) or other major offences in Malaysia.
Such statements made without foundation on fact or law do little to serve Anwar or the argument that the state is corrupt or the prosecution is purely politically motivated to persecute Anwar.
Much like Ambiga, Thomas offers feeble reasons as to why the trial should not go ahead including implications for the state such as Malaysia’s reputation in the eyes of the outside world as a valid consideration.
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 as it is to the common citizen? Would that not of itself be a violation of the concept of the Rule of Law?
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 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 to both Ambiga, Thomas and both sides to this conflict the glaring omission by counsel for either side to deal with the issue of rape which inevitably must arise from sodomy which is widely seen as a ‘moral offence’ with legal sanction. It is a logical conclusion to draw
No one has yet raised the vexed question of whether or not the sodomy complained of was consensual. If not it is a double offence of rape by sodomy by implication that is being complained of but not pursued here. If it is not alleged that the complainant was raped, then he may well be complicit in the commission of the offence of sodomy and perhaps also of a further offences that arise from being party to one offence then using it to further achieve some other outcome, political or personal.