Stranger than fiction
The Anwar Ibrahim legal saga – aka the Sodomy I and Sodomy II trials – spans almost 20 years, and there are many lessons that Malaysia can learn from it.
MALAYSIANS could not have known that when then deputy prime minister Datuk Seri Anwar Ibrahim was first taken to court in 1998, it would take almost 20 years for him to become a free man.
Or, that the man who was prime minister then, who sacked Anwar as DPM, would return as PM and pave the way for his pardon after Pakatan Harapan – the new opposition coalition – won the 14th General Election spectacularly on May 9.
Anwar was the heir apparent until his fall in 1998 during the premiership of Tun Dr Mahathir Mohamad Version 1.0. He is once again, touted to be, the heir apparent under the premiership of Dr Mahathir Version 2.0.
Politics has always made for strange bedfellows. The more important question is current perception of the independence of the judiciary and what law students – who may end up as defence counsel, deputy public prosecutors and judges – have learnt.
One of the concerns of the International Commission of Jurists (ICJ) was how the Court of Appeal (in 2014) and Federal Court (2015) set aside Anwar’s acquittal by the High Court in Sodomy II, and convicted him instead. ICJ commissioner Elizabeth Evatt, a former Australian judge, who observed both appeals said the courts “adopted an approach wherein the burden was on Anwar Ibrahim to prove that he had a credible defence, rather than raising reasonable doubt as to the prosecution’s case”.
Some international observers have called the Anwar trials political persecution disguised as criminal charges.
Australian lawyer Mark Trowell has written a very readable series on the saga that spanned almost two decades. Trowell, who is also a Queen’s Counsel, observed the trials for several organisations, including ICJ, Lawasia, Australia and the Inter-Parliamentary Union.
In 2012, he wrote Sodomy II: The Trial of Anwar Ibrahim. The new edition – The Prosecution of Anwar Ibrahim: The Final Play – came out in 2015. Today, his third book – Anwar Returns: The Final Twist. The Prosecution and Release Of Anwar Ibrahim – also published by Marshall Cavendish, will be launched in Kuala Lumpur.
Deputy Prime Minister Datuk Seri Dr Wan Azizah Wan Ismail, who is also Anwar’s wife, will be the guest of honour at the event organised by Institut Darul Ehsan.
In a recent interview, Trowell tells Sunday Star that justice is a global concern: “It’s critical that we all stand up and champion it with a single voice. Admittedly, that’s difficult in some countries where voices are suppressed under authoritarian rule.”
One of his reasons for acting as an international observer the last 16 years is his stand that those in western democracies have a greater responsibility to assist those who suffer under authoritarian regimes.
“As Martin Luther King Jr said: ‘Injustice anywhere is a threat to justice everywhere’,” he notes.
“The importance of on-theground international observers cannot be underestimated. Experience shows us that the mere presence of observers at these trials has some effect upon the proceedings and importantly by reporting to the international community about what is happening.
“Former Australian High Court Judge Michael Kirby in the foreword of my second book said that: ‘trial observers constitute a rare, but important, breed’. He recalls a conversation with Nelson Mandela – when attending his inauguration as President of South Africa – who told him that the simple vigilance of the observers at his Rivonia trial had advanced the fairness of the proceedings. In the end, all but one of the accused, including Mandela, were found guilty. However, they escaped the gallows, and were sentenced to life imprisonment instead,” he adds.
However, in the case of the observation of Anwar’s court proceedings, Trowell is not sure the result would have been any different.
“The judges knew they had to be more careful in the way they dealt with him, mostly because the international community would know.
“At the end of the day, that didn’t stop them from convicting him, but they were very uncomfortable justifying what they had done when attending international forums where the cases were discussed, ” says Trowell, who has also observed proceedings in Thailand and Sri Lanka.
He says his books give “not only an account of what happened, but also a careful analysis of the evidence at trial, and on appeal. Only then can one assess the fairness of any justice system, and the result.”
In asking himself the question of whether the courts had properly considered the evidence within the framework of legal principles that govern every court proceeding, he says he concluded “in Anwar’s case,
Trowell’s third book chronicles Anwar’s legal struggle for the past 20 years, which he tries to relate to the political and social changes in Malaysia. that didn’t happen”.
Asked whether he agreed with foreign legal minds, who thought the Anwar trials were political trials disguised as criminal offences, Trowell replies that, “that’s for others to judge”.
He says that his assessment of the fairness and integrity of the court proceedings was based on court judgments, and how the judges assessed the evidence.
“There was no doubt that there were aspects of what happened that really had strong political overtones.
“For example, the young man who complained of being sexually assaulted by Anwar was involved in a number of questionable meetings that suggested direct political involvement of Anwar’s political enemies.”
What lessons are there for future advocates, prosecutors and judges in law schools here?
“Well, it’s all about maintaining the fundamental principles of law that ensure that justice is done.
“More than one lawyer in the years before GE14, told me that for the most part, non-controversial cases were determined on the facts, and according to law.
“However, where the government, or important political figures and their ruling clique were involved, the facts and law meant nothing. It was just something that was accepted as being part of the system,” says Trowell.
“How can you instil integrity, honesty and values in law students when this is the type of justice system that operates?
“Perhaps they could take as their role model, the great Malaysian advocate Karpal Singh, who tragically died in 2014.
He appeared as counsel in most of Malaysia’s significant cases over the last 44 years or so. It wasn’t just the big cases, but also for the “little people” as well.
He was a political force for change, standing up for justice wherever it was needed. He wasn’t afraid of anyone, or anything, particularly judges.
“His life reflected the modern history of Malaysia and the events that have shaped it as a nation. He was a fearless advocate for justice, and someone not only to be admired, but for lawyers to emulate.”
Trowell describes his third book as bringing the story of Anwar’s struggle over 20 years “all together”.
“It’s an amazing story, with heroes and villains, and all sorts of twists and turns. They say fact is stranger than fiction, well, you couldn’t imagine this happening, but it did.
“It is a must-read for any Malaysian, who may have only glimpsed the action over that period of 20 years, but it’s part of the country’s struggle against authori- tarian rule.
“I admire journalists, who write for a living. I didn’t appreciate how much hard work was involved before.
“I know there is a legal emphasis in the book, but that’s what was used as a weapon against Anwar, and it’s important to understand how that happened.
“But I didn’t write the book for lawyers. I have tried to relate it to political and social changes in Malaysia.
“When I started acting as an international observer at Anwar’s trial in 2008, I had no idea that it would last so long, or turn into a book. I hadn’t been an observer at his first trial, but I was aware of what happened. Lawyers are used to reviewing old cases, so that wasn’t a difficulty.
“Nevertheless, I couldn’t write a detailed account of Sodomy I, simply because I wasn’t there. Secondhand accounts are fine, but each person has their own view or perspective about what they observe, so it’s best to rely on your own assessment.”
Trowell says his writing of the books was accidental. Anwar’s daughter, Nurul Izzah, knew he was sending reports to Geneva and suggested he combine them into a book format, “because she believed it was important that what had happened to her father needed to be recorded so that all Malaysian could know about it and understand.”
The Final Play contains Trowell’s interview of Anwar on July 9, 2014, in which Anwar talks, among others, about how “well-cemented” the Pakatan Rakyat (PR) was and how he had managed to avoid a breakup of the then opposition coalition. However, less than a year later, on June 16, PR was dead, to be replaced by Pakatan Harapan. A new interview, conducted soon after Anwar was pardoned, appears in The Final Twist that is being launched today.