Malaysia: “In This Country, An Accusation of Sodomy Is Defamation of Character”

Decriminalization is one of the main goals of the International Gay and Lesbian Human Rights Commission (IGLHRC). The impact of criminalizing non-heteronormative behavior and sexual relationships has far-reaching consequences—violence and discrimination against LGBT people; vulnerability to abuse and extortion; living conditions that are at best isolating and at worst lethal. This regional update is written by IGLHRC’s Regional Coordinator for Asia and the Pacific Islands, Grace Poore in an effort to unpack the impact of anti-sodomy laws like 377, which in this instance, has been used during political rivalries to engage in criminal and legal persecution of opponents. An electronic version of this publication is available on our website: www.iglhrc.org

Background On June 28, 2008, Saiful Bukhari Azian, a 23-year old former assistant of Malaysia’s opposition leader, Anwar Ibrahim, told police that Mr. Anwar had committed sodomy. Mr. Anwar has denied the allegation and is suing the aide for defamation. Section 377A of the Malaysian Penal Code criminalizes “carnal intercourse against the order of nature” which is defined as “any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person.” In 377B, punishment for the described sexual activity, even if consensual, is maximum 20 years in prison and whipping. Section 377C deals with non-consensual sexual activity described in 377A that may or may not lead to injury or death of the victim. Punishment is a five to 20-year prison term and possibly also whipping. In addition, several states in Malaysia implement syariah laws against the Muslim population1 with penalties for sodomy (liwat) and lesbianism (musahaqat) amounting to fines of five thousand ringgit (1532 US dollars), three years imprisonment and/or six lashes of the whip.” 2

Framed For Sodomy Before

Mr. Anwar faced a sodomy claim before. In 1998, when he was serving as Deputy Prime Minister, another aide and the family driver each accused him of having sex with them. The aide claimed it was consensual; the driver claimed coercion. In addition, Mr. Anwar was charged with corruption because the government claimed he used his power to cover up the sodomy. Both accusers eventually recanted. However, Mr. Anwar was dismissed from his position, convicted and sentenced to prison—nine years for sodomy and six years for abuse of power. In prison, he sustained injuries from beatings by the police chief. Six years into his sentence, the sodomy charges were overturned, and Mr. Anwar was released in 2004. The corruption conviction remained, resulting in a five-year ban from standing for public office. Mr. Anwar has argued that the charges he faced in 1998 were part of a political conspiracy by followers of then Prime Minister, Dr. Mahathir Mohamad with whom he had a political falling out, and who wanted Mr. Anwar out of his Cabinet. Prior to their falling out, Mr. Anwar was Dr. Mahathir’s right hand man and groomed to become his successor.

Repeat of 1998?

Since his release from prison, Mr. Anwar has been at the forefront of uniting opposition parties to defy the power of his former party, United Malays National Organization (UMNO), which dominated the government for 50 years. He and his wife, Dr. Wan Azizah Wan Ismail3, an opposition leader in parliament, view the new sodomy charge as yet another frame-up attempt by followers of anti-Anwar people, bent on derailing his political ambition. To prove their point, Dr. Azizah showed the international press a cell phone image of the accuser, Saiful Bukhari standing next to advisers of the current Deputy Prime Minister who is slated to take over government when the current Prime Minister, Abdullah Badawi steps down. The timing of the sodomy charge strengthens the conspiracy argument. In March this year, Malaysia’s ruling party, Barisan Nasional (National Front) lost its unchallenged two-third majority to the opposition for the first time in 40 years. The National Front is a coalition of three parties, with UMNO in the majority. Some members of the National Front have defected to the Anwar-led People’s Justice Party and more defections are expected. Another development tied to the timing of the sodomy charge is that with the ban from public office lifted in April 2008, Mr. Anwar has announced his intention to run for parliament this September and eventually for Prime Minister.

The Accuser

According to Sivarasa Rasiah, a lawyer on Anwar’s legal team and vice president of the People’s Justice Party, Saiful Bukhari who brought the sodomy claim is a victim. “We know he is a pawn and is being used, maybe willingly used for various inducements. He’s being motivated, not so much coerced but being induced with money, basically, paid to make the accusation. And in this sort of social environment it’s good dirt to stick on Anwar,” says Mr. Rasiah who was also a key supporter of Mr. Anwar’s legal and political battles in 1998. Mr. Saiful started as a volunteer with the People’s Justice Party a few weeks before the March election, and was hired as a personal assistant when the election was over. “He gained people’s confidence so when he transitioned from volunteer to full time, it wasn’t a big issue,” Mr. Rasiah explains. Some bloggers have stated that Mr. Saiful is an UMNO sympathizer and close to people connected to the Deputy Prime Minister; others have accused him of being a mole for the National Front. He is currently missing from his home and said, by his family, to be in hiding.

Why Sodomy?

When asked why Mr. Anwar was accused of sodomy and not some other crime, which would also damage his reputation and career, Mr. Rasiah points out, “Sodomy is a different kind of weapon against him because of his Islamic credentials. Mahathir’s followers said this is a great weapon against him. So it’s a repeat of 1998. Anwar’s political opponents see him gaining strength and making a strong comeback towards prime ministership. The Deputy Prime Minister is most concerned about this because he wants to replace Badawi, the Prime Minister. So it’s a bit of a desperate measure.” Mr. Anwar’s political background as a Malay nationalist and Islamist who was part of the movement to Islamize Malaysia, made him particularly vulnerable to sodomy charges which effectively discredited him among his supporters in 1998. As he did then and is doing now, he is suing his accuser for defamation. “The reason he is suing Saiful for defamation is because in this country, an accusation of sodomy is defamation of character. In 1998, he sued Mahathir for defamation and also malicious falsehood because the accusation was politically motivated. But Mahathir’s lawyers said since he was convicted, there was no defamation. The case went to appeals but it was struck down. This time he is suing Saiful for making an allegation, a false statement. Because it is not true. Neither of them had sex,” Mr. Rasiah explains.

Differences Between 1998 and 2008

Under Prime Minister Mahathir, any threats or acts of dissent were quashed with liberal use of the Internal Security Act to arrest and detain without due process anyone perceived to be promoting insurrection against the state. But as Mr. Rasiah observes, “Now I feel things may change. The government has concerns that if Anwar [who is an ethnic Malay] is charged, it may provoke a backlash from the Malay grassroots, which may see him as a victim of persecution. This time the government will take a political approach. They’ll give him his day in court, but they won’t jail him, won’t deny his freedom. But they’ll taint him.” Mr. Rasiah’s comments are directed at UMNO leadership and top state officials such as the current Attorney General (AG) and the current Inspector General of Police (IGP). It is speculated that the latter two fear imprisonment if Mr. Anwar returns to power. As quoted in a New York Times article, Mr. Anwar is said to have “recently obtained evidence that implicates the AG and IGP of misconduct and fabricating evidence against him in 1998.”4 Another difference between 1998 and now is that Malaysians are less likely to believe the charge against Mr. Anwar. One recent poll carried out in Malaysia shows that people are more cynical now. A third difference in the two settings is that both accusers in the previous case made the statements voluntarily. This time, as Mr. Rasiah acknowledges, “It’s difficult to say whether Saiful is being coerced.” A fourth difference is that one of the accusers in 1998 said the sex was coerced. This time, it is not clear if the charge mentions coercion. According to Mr. Rasiah, “We don’t know what Saiful actually said. There’s no charge sheet or police report just media reports on what the police have said Saiful told them. Saiful actually went to Najib’s people first and they told him to go to the police. The police told the media it was an act of sodomy but Saiful himself did not speak to the media. He’s never brought up duress.” When asked to confirm a press report that Mr. Anwar has an alibi, Mr. Rasiah responded, “Yes he does but I can’t discuss the details. We’ve looked at Saiful’s allegation and it’s clearly a frame up. A complete fabrication.”

Risk Of Coming Forward

Since homosexuality and sodomy are against the law in Malaysia, it is not clear if Mr. Saiful is also at risk of being prosecuted. Mr. Rasiah says, “He must have been told nothing will happen to him if you say it was done under duress. And he’s been paid money. The previous people in the 1998 case who said they engaged in consensual sex [with Anwar] were charged and jailed because it is against the law, not Azizan, the driver because he said he was coerced.” In Malaysia as in all countries that criminalize homosexuality and same-sex sexual relationships, being falsely accused of committing “acts against the law of nature” exposes victims to the same level of risk as victims seeking redress from the criminal legal system for rape or any other form of partner violence involving illegal sexual activity. Coming forward about the crime in that situation is difficult enough without also facing possibility of prosecution. On the other hand, if sodomy were not criminalized, a law like 377 could not be used or misused against people. In the case of Mr. Anwar, if there had been no 377, there may not have been any claims of sodomy, and if there were, he may have faced social stigma but not criminal and legal penalties. Given his firsthand experience with the strategic misuse of Section 377, and how it wreaked havoc on his political career and personal life, one wonders if Mr. Anwar has been sensitized to the dangers of such a law on everyone but particularly LGBT people. “We need laws to protect against rape and coercion,” Mr Rasiah agrees but contends, “The gay rights debate is a separate issue and of course that’s politically a difficult area for our party to go near. Primarily in this country we need a democratic context, the right to leave your religion, the right to be gay, the right to have personal freedom. Otherwise these things can’t be discussed sensibly. What we get is extreme religious views and no one to argue with them. Once the country is democratized like Indonesia, the debates on laws like Section 377 can happen and people can say, why do we have laws like these, we need to remove them.” He adds, “Culturally, gay behavior is accepted in Malaysia although not if it is flaunted publicly. I have gay friends in the UK who have been spit on. No one spits at a gay person here. There is no anti-gay movement in this country.” When made aware of reports about transgender people in at least one state being viciously beaten up, and police raids of private gay parties in another state as part of operation clean up by the vice squad, Mr. Rasiah responds, “I haven’t heard of these reports. But police harassment, yes and police related violence, yes. But this is about abuse of power. Raids happen to other people too not only gay people. It’s not a systemic abuse of just gay people.”

Conclusion

When LGBT rights come up, many people in Asia frequently respond that it is not part of Asian culture to flaunt sexuality or sexual interactions, thereby conflating the right to “flaunt” with the right to express sexual orientation and gender identity, the right to spectacle with the right to be seen and heard without fear. In reality, the standard for acceptable or unacceptable public display of sexuality applies unevenly even for heterosexuals, depending on their sex, age, class, ethnicity, religion and other factors. The difference for LGBT people is that the standard is not only about exercising public decorum or discretion but the basic right to exist without criminal sanctions, not to mention religious condemnation, medical patholization and/or community pressure to conform.

Recommendations

While one can argue whether or not there is an anti-gay movement in Malaysia, it is insufficient to merely settle for the fact that there is “no anti-gay movement” there. More importantly, there needs to be an environment of acceptance, where the right to be gay, lesbian, transgender or bisexual is affirmed. Mr. Anwar’s party is called People’s Justice Party. As a lesbian born and raised in Malaysia, it is my hope that gays, lesbians, transgender people and bisexuals will be imagined as part of this vision. Promoting reformation and democratization is about promoting diversity of citizenship, which needs to include promoting the right to sexual and gender variance. The goals and benefits of political, legal reformation and social democratization should apply to all people, not to some people first, then others later, if at all. Equally important is the need for LGBT people to engage with the political process towards democratization and make their presence felt to party leadership and for the leadership to recognize their value. Much energy and political will, many strategies and hearts have gone into defending Mr. Anwar’s reputation and his right to political dissent without persecution. Removing a law like Section 377 will also require these commitments. It will be a step towards defending the integrity of LGBT people and their right to live with dignity, without being asked to hide (or hate) who they are.


1- Malaysian society roughly comprises 66 percent ethnic Malays (99 percent of whom are Muslim), 26 percent Chinese, and 8 percent South Asians (of Indian and Sri Lankan heritage). 2- State Sponsored Homophobia, ILGA- International Gay and Lesbian Association, May 2008. 3- While Anwar Ibrahim was serving his sentence for sodomy and corruption, his wife, Dr. Wan Azizah Wan Ismail headed Parti Keadilan (People’s Justice Party), which is currently a coalition of three opposition parties, led by Mr. Anwar. Dr. Wan Azizah also headed the movement to defend her husband’s innocence. 4- Thomas Fuller, “Malaysia Opposition Leader Accused of Sodomizing Aide,” The New York Times, June 30, 2008. [www.nytimes.com]