A Trial Of Democracy

Anwar, Round 2 has commenced.

Media reports inform us that a police report has been lodged by an aide. The complaint appears to be that he was sodomised by Anwar Ibrahim on Thursday. No particulars of the alleged event have been made public. The complainant was to be given a medical examination and, at the time of writing, it is not certain whether this has been done.

Anwar has issued a statement. He says that the police report is a fabrication (meaning, I think, that the events described in the report). Fully expecting to be arrested, and anticipating the worst, he believes that the same methods employed against him in 1998 are being resorted to again. He claims to have recently obtained evidence implicating the Inspector General of Police and the Attorney General in “misconduct including the fabrication of evidence in the cases launched against me in 1998-1999.”

Ominously, he further says that PKR expects “the media, the judiciary and the police force to all come under the direct and unchecked control of the executive.”

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Let’s start with the obvious. If a crime has been committed and a report lodged, then the crime needs to be investigated. Sodomy is a crime (I have my reservations about whether it is constitutional for it to be so if it is a consensual act between adults) and a police report has apparently been lodged. The complaint should be investigated. Even if it is against Anwar Ibrahim and even if it pertains to sodomy, which it does.

It is however incumbent on those in charge of the investigation that the investigation be conducted fairly and comprehensively. This means that the police cannot rely merely on the say-so of the complainant. Even if he was sodomised, which at this stage has not been confirmed, this does not mean that he was sodomised by Anwar Ibrahim. If he was not sodomised, the investigation on the complaint should be brought to an end.

I am curious. How did this alleged act of sodomy occur? Was the complainant held down by Anwar Ibrahim, or perhaps accomplices? What it done with the complainant’s consent, perhaps even at his suggestion? Perhaps he was drugged or beaten unconscious to facilitate the process?

These are questions that the police must ask in attempting to fully understand what it is that occurred, if anything occurred at all. This is more the case in view of the key elements of the sodomy investigation and prosecution in Anwar, Round 1, in particular the alleged confessions of Sukma Dharmawan and Munawer Anees which both claimed had been extracted by coercion. Similarly, the omni-present mattress and the almost magic DNA samples ought not be overlooked. This is underscored by Anwar Ibrahim’s insistence that his prosecution was politically motivated and had, for that purpose, been pre-judged.

The need for transparency and accountability is made even more crucial by the allegation by Anwar Ibrahim that he has evidence in hand implicating the Inspector General of Police and the Attorney General. The IGP figured in Anwar Round 1 (he was then SAC Musa Hassan).

In the same vein, the decision to prosecute Anwar Ibrahim, if at all, must be made only after having taken into consideration all circumstances. The reality is that the Attorney General was 2nd chair to the then Attorney General in Anwar, Round 1. Questions were raised about the manner in which he conducted himself, questions which the Federal Court in the Zainur Zakaria appeal suggested that he may have wished to address. The AG has not done so to date.

The situation is such that both the IGP and the AG may wish to take steps to distance themselves from the investigation and prosecution, if any.

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And in the meanwhile, the fact that Morgan Stanley has indicated that some RM330 billion has been dissipated from Malaysian through corruption falls even lower on the list of priorities (if it was on the list at all).

One would not be faulted for thinking that the prosecution of those responsible and the recovery of as much of the money as possible is a matter of national importance and of public interest. The government may wish to remind themselves of the extent to which the Government of Hong Kong went to prosecute Warwick Reid, the former Director of the Commercial Crime Unit. He was convicted and the monies he corruptly received traced world-wide.

Somehow, the sexual proclivities of an individual, whether real or fantasized, do not seem to matter when the country is facing a financial crisis largely due to fat cats having looted and pillaged their way through national resources, seemingly at will.

But then, Malaysia Boleh.

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And does it matter that since Anwar, Round 1 a Royal Commission of Enquiry has handed down a report in which the Commission has, in effect, concluded that the relationship between the Executive and the Judiciary was, and by logical extension, still is unhealthily close?

If there is going to be a prosecution, it will be conducted in a Sessions Court. Subordinate court judges are members of the Judicial and Legal Services. They fall within the jurisdiction of the Judicial and Legal Appointments Commission of which the Attorney General is a member. The Attorney General also considers matters of promotions and transfers. He is, in effect, their superior.

***

Malaysians are fond of a good gossip session. Conspiracy theories rank way up there on the list of things that must be talked about, the first chance one gets to talk about something.

Can you blame us? Nothing seems to work the way it is supposed to, intrigues have become as normal as breathing.

I wonder whether there are any Malaysians at all who actually believe that everything is as it should be. The cabinet and the Barisan Nasional excluded (though a state of denial may be a reasonable excuse).

***

Anwar says he expects the worst. His caution suggests the use of Emergency powers. There is nothing new there, the Government is still using some Emergency legislation. The declarations from previous emergencies have not been revoked and the Federal Court (the Al-Maunah case) has held that they are still valid.

And, even if there were no declarations of emergency, would the Government need to take any further steps to ensure that things went the way it wished? Organs of state and federal agencies act in a manner that strongly suggests a belief on their part that the national interest is the government’s interest and for that purpose, political interests shape the government’s interests.

Though the office of the Attorney General is an office created by the Federal Constitution, the Attorney General is nothing more than a civil servant, holding office “during the pleasure of the Yang di-Pertuan Agong” (a standard formula used to describe the holder of office as NOT having security of tenure). The YDPA being a figurehead, the office is held at the discretion of the Prime Minister who advises the YDPA as to the appointment of Attorneys General.

Significantly, prior to 1963 (when the Constitution was amended), the Attorney General was to “hold office until he attains the age of sixty-five years or such later time, not later than six months after he attains the age, as the Yang di-Pertuan Agong may approve.” He could be removed only by a tribunal similar to that to be established for the removal of a judge and only on similar grounds.

Similarly, as we have come to see, the Inspector General of Police depends on the largess of the Prime Minister. This is the reality of the framework in which the persons holding these offices operate in.

It is a framework that places them in the conflict of interest that arises between self-preservation and the duty to act as the Federal Constitution requires when the Government chooses to allow political objectives to trump national interest objectives. It is a conflict that I believe is ultimately resolved by acting on the basis of “saya yang menurut perintah”.

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I was told by some senior politicians that there is nothing more effective than a good, juicy scandal to undermine the political strength of a Malay politician who depends on the support of the Malay grass-roots.

If true, it is the basis for a strong argument against racial politics. A politician is a politician be he/she Malay, Chinese, Indian, Punjabi, Eurasian, Dayak etc.etc.etc.

Whether he/she is a useful politician depends only on his/her commitment to righteousness.

***

Do we panic?

I think not. Under no circumstances. It will not get us anywhere and, conversely, will take us down a road that may lead us exactly where schemers, if there are any, would want us to.

Destabilized, confused. Weak.

We began building a solid foundation for the democracy we want for our young on March 8th. That was a journey we embarked upon for ourselves, our nation, our future.

It was not about Anwar Ibrahim.

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That does not mean that we do not support the cause of justice. He is entitled to the full protection of the law. He is entitled to a fair and comprehensive investigation, if one is required at all. He is entitled to a fair prosecution and, above all, he is entitled to a fair trial, if there is one.

In all of all that and more, he deserves our full support. But, fearing the worst, are we going to stop what we started if Anwar Ibrahim is taken down?

I think not.

If Anwar, Round 2 has been brought on for political purpose, then let us show those who are pulling the strings, that race politics do not matter to us anymore.

Let them hear us, loud and clear: We are Malaysians, and only justice matters.

MIS