Friday, August 8, 2008


07/08/08 By Yusmadi Yusoff

AUG 7 — We have been incessantly reminded by government leaders that we should abide by the law. That, in order for justice to prevail, we should uphold the rule of law. The Prime Minister again reminded us that we should be fair and that the law must allow a complainant to seek legitimate redress.

The Prime Minister cautioned the public to “remember” that there is a valid complaint by Mohd Saiful Bukhari Azlan against Datuk Seri Anwar Ibrahim to be entertained. That it was, after all, done in accordance with the dictates of the law.

That, again, any public outcry against the charges framed against Anwar is unnecessary and would jeopardise peace and order in society. As we moved into another series of the Anwar Ibrahim trials, reminiscent of the 1998 saga, we have again been given legal tutelage by government ministers.

It is assumed that as long as the process involves the court of law, justice would prevail. It is also assumed that a charge can only be framed in the face of credible evidence, as weighed by the institutions of justice. These are the assumptions thrown about in the mainstream media on a daily basis, so that the people understand and appreciate that the fair game of justice is at work.

We have been made to understand that we should let the law take its course. Lady Justice, holding the balancing scales, would forever be blinded from prejudices and would decide without fear or favour. The assumption is only theoretically correct, lest we forget that even justice can be a game, with willing pawns, charting its own rules for its own needs.

The free use of the terms “rule of law” and “due process” as a means to justify action by politicians demands serious examination. As simple as it sounds, “rule of law” in fact reflects a serious concept which has often been misused and its philosophical and jurisprudential considerations largely ignored.

First and foremost, rule of law does not equate to mere application of rule by law, regardless of the substance of the law invoked. Throughout history, laws have constantly been challenged for elements of discrimination and oppression. Hence, even the substance of the law must be examined before the application of the law can be accepted.

Secondly, rule of law, even at its most minimal level, demands the application of the law to be devoid of external influences, especially governmental influence and that the institution adjudicating the laws ought to be free from corruption. External influences create ripples of instability, which may grow and endanger the order and legal certainty that is assumed with the rule of law.
Rule of law shares an extremely intimate relationship with the other dimensions of a democratic government. In the truest form, it demands an independent judiciary, political rights, civil liberties and mechanisms of accountability to ensure that it remains true to form.

Thirdly, we have to understand that rule of law rests on the pillar of democracy. In a society where the word of the minister is often quoted to be the gospel truth, we need to urgently step back and recall Thomas Paine’s warning that “in absolute governments, the King is law, so in free countries the law ought to be King and there ought to be no other”.

Before parading the rule of law to diplomats and the media, as constantly exercised by Home Minister Datuk Syed Hamid Albar, we have to first honestly answer if we have been a free country in our practice of the law. We are hard pressed to honestly answer if we have been a country which protects, strengthens and empowers the agents of the rule of law.

Democracy, protection of human rights and protection from bureaucratic caprice and corruption certainly cannot be divorced from the discussion with regards to the rule of law. Any attempt to do so means that the rules which have been promulgated exist within a system which is known only to autocratic despots and German Nazis.
The notion that rule of law is an automated system which guarantees justice cannot be true when the substance of the law and its agents are constantly questioned even by the very people governed by the system.

Serious doubts and questions were asked by the Bar Council and the public, mainly through the alternative media, on the veracity of the charges made in the police report. Yet, the questions posed were replied by affording denials, almost evasive if one were to recall the media statements made by Hospital Pusrawi on the medical report of Saiful Bukhari.

The call by the Prime Minister himself for Anwar to “deliver” his DNA to the authorities is another incident which smacks of legal and scientific ignorance. The public demanded answers and obtained denials. They may have been “answers” but in fact, they created further questions and undoubtedly fuelled further speculation. More damaging, the “rule of law” as practised in Malaysia, now hangs precariously for the whole world to see.

The controversial trials of Norita Samsudin and Datuk Norjan Khan and, lately, of Altantuya Shariibuu certainly beg the question of whether the rule of law is in place. In the eyes of the public, the institutions of justice have not “delivered” up to expectations. The lack of public confidence automatically means the lack of “legitimacy”. In short, the rule of law cannot exist in the true sense when it is administered by a questionable system.

The philosophy of punishment is deterrence. Yet, there would be none should the delivery mechanism be tainted with abuse and doubted by the people it serves.
Rule of law demands categorical commitment to democracy and basic protection of human rights. Anything less means that we are not entitled to invoke it as a tool to justify action. The rights of not one but all citizens are at risk without a vigorous application of a truly democratic rule of law.

Often quoting or misquoting the “rule of law” in order to justify questionable action in the face of glaring questions is a retrogressive and an unabashed embrace of Machiavellian politics — that the end justifies the means. Getulio Vargas, the former Brazilian President, was reported to have said: “For my friends, everything, for my enemies the law.” Such is the power of the law.

Yusmadi Yusoff is the Parti Keadilan Rakyat MP for Balik Pulau and currently a Fellow at the Center on Democracy, Development and the Rule of Law at Stanford University, the United States.
The law, the law…07/08/08
By Eddin Khoo
I know I am uncharacteristically efficient posting things out on this list, but given these murky times in contemporary Malaysia, I will plead this indulgence, “among friends…”
Anwar was released on bail today.

The original report against him which claimed sexual assault appears to have been ammended, and he was charged with consensual anal intercourse instead (yes, that is the lexicon of the day in oh-so-sanctimonious Malaysia of Islam Hadhari). His alleged ‘willing’ partner, however, as of now, appears to be free of such a charge.
07/08/08 Mary E. Kissel 7 August 2008The Wall Street Journal Asia

Malaysia’s Election Commission set a date yesterday for a parliamentary by-election which opposition leader Anwar Ibrahim is contesting. Also yesterday, the police summoned him to court to face charges in a highly questionable sodomy case.

It’s hard to believe that the convergence of these events is a coincidence. Mr. Anwar’s three-party coalition claims it has enough support to topple the current government, should Mr. Anwar win the Aug. 26 by-election. Fully 66% of 1,030 Malaysians surveyed nationwide last month by an independent polling company agreed that the sodomy charge was “a politically motivated action to disrupt Anwar Ibrahim’s political career.”
In a smaller poll conducted this weekend by the same company, 72% of Malays — which traditionally support the ruling United Malays National Organization — said they didn’t believe the allegations were true.

The police haven’t done much so far to prove otherwise. But Malaysians certainly also recognize in the current case echoes of the political games that have tormented Mr. Anwar and embarrassed their country before. Back in 1998, the government of then-President Mahathir Mohamed threw Mr. Anwar in jail on sodomy charges, just as Mr. Anwar was challenging the head of state’s leadership.
Although Mr. Anwar was subsequently convicted of sodomy and corruption, a high court overturned the sex charge in 2004, less than a year after Mr. Mahathir retired from office.

Drop Political Charges Against Opposition Leader
07/08/08 New York, August 7, 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 andtried 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 asauthentic, 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 thatpolice 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 ina 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 certaindefenses, 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, HumanRights 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 inthe previous trials.


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