Malaysia: Trial of Opposition Leader Proceeding Unfairly

General practice in Malaysia is for the prosecution to make all evidence available to the defense during the pre-trial period. In Anwar’s case, the court concluded that the defense could request the information during the course of the trial. 

Human Rights Watch

Government prosecutors in the trial of Malaysian opposition leader Anwar Ibrahim should turn over their evidence to the defense before hearings resume in order to comply with fair trial requirements, Human Rights Watch said today. The government has charged Anwar, head of Malaysia’s opposition coalition Pakatan Rakyat (People’s Alliance or PKR) with “sodomy” for alleged consensual homosexual conduct.

Anwar, 63, faces a possible 20-year prison term and whipping under a colonial-era law that criminalizes “carnal intercourse against the order of nature.” Even if he is imprisoned for only one day or fined as little as 2,000 ringgit (US$625), Anwar would be forbidden by election law from running for office for five years. In 2008, the PKR had made political gains that ended the two-thirds parliamentary majority long enjoyed by the ruling coalition, Barisan Nasional (National Front or BN).

“Basic fair trial rights require giving Anwar access to the prosecutor’s evidence so he can defend himself,” said Phil Robertson, deputy Asia director at Human Rights Watch. “Unfortunately, the prosecutors have tilted the playing field against Anwar by keeping key documents from his lawyers.”

Human Rights Watch said that the government has yet to fulfill a February 9, 2010 promise by Nazri Abdul Aziz, a senior government minister in the Prime Minister’s Department, that the “rights of both the accuser and the accused will be respected during the trial of Mr. Anwar.”

Since Anwar’s arrest on July 16, 2008, the case has featured repeated court rulings denying defense requests to provide crucial prosecution documents. The courts have denied access to the list of proposed prosecution witnesses and their statements to prosecutors, including those of Mohd Saiful Bukhari Azlan, a former aide to Anwar and his accuser. They have also denied defense access to a security video recording from the condominium where the alleged crime occurred.

The courts have also denied defense requests for copies of clinical and other notes, reports, materials, and specimens related to Saiful’s examination by three Kuala Lumpur Hospital doctors on June 28, 2008, two days after the alleged incident. Additional requests for the accuser’s complete medical history, for the doctors’ qualifications and experience, and for the standard sexual assault equipment and kits used to examine alleged victims were also denied. A forensic expert hired by the defense complained that lack of such evidentiary materials would hinder his ability to assist the defense during the cross examination of the three doctors.

In the latest development, the Court of Appeal has scheduled a hearing for August 6 on Anwar’s appeal seeking access to the medical records, which will be several days after the three doctors are scheduled to be cross-examined by the defense.

General practice in Malaysia is for the prosecution to make all evidence available to the defense during the pre-trial period. In Anwar’s case, the court concluded that the defense could request the information during the course of the trial. However, when the trial got under way on February 2, 2010, and the defense asked for disclosure, the judge said he was restricted by the pre-trial disclosure decision. The only information available to the defense comes from the in-court testimony of prosecution witnesses.

“Anwar’s lawyers have been forced to defend their client with one arm tied behind their back,” Robertson said. “By failing to turn over critical evidence, the courts and the prosecutors are only raising doubts about the fairness of the proceedings, and demonstrating again that the charges are politically motivated.”

The proceedings appear to contravene section 51A, a March 2006 amendment to Malaysia’s Criminal Procedure Code designed to encourage wider access to prosecution evidence. The section includes a provision for the prosecution to turn over “any” document that it will use as evidence and a written statement of facts favorable to the defense with the exception of any fact that “would be contrary to public interest.”

“The Malaysian government asks the international community to honor its democracy and commitment to rule of law, but there is a wide gap between government rhetoric and the reality,” Robertson said. “If the government is sincere about holding a fair trial, then it needs to order the prosecutors to turn over the documents Anwar’s lawyers have requested immediately.”