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C O N F I D E N T I A L SECTION 01 OF 07 KUALA LUMPUR 000529 
 
SIPDIS 
 
FOR EAP/MTS 
 
E.O. 12958: DECL: 07/01/2019 
TAGS: PGOV PHUM KDEM KJUS MY
SUBJECT: ANWAR IBRAHIM'S SODOMY TRIAL II - A PRIMER 
 
Classified By: POLITICAL COUNSELOR MARK D. CLARK, REASON 1.4 (B AND D). 
 
Summary and Comment 
------------------- 
 
¶1.    (C) Malaysian Opposition leader Anwar Ibrahim will go 
on trial beginning July 8 on charges of sodomy -- a criminal 
offense in Malaysia -- with a former aide.  Anwar was 
previously tried and convicted of sodomy in 2000 in a heavily 
manipulated trial that the U.S. concluded "was marred by deep 
flaws in the judicial process."  The verdict was overturned 
on appeal in 2004.  Senior Malaysian authorities were very 
aggressive in handling the present case during the initial 
period of June-September 2008, but, coinciding with the 
passing of Anwar's deadline to bring down the government 
through Parliamentary cross-overs, have since taken a more 
measured "rule-of-law" approach in public.  Authorities have 
not taken all the legal and extra-legal measures available to 
them, for example, to challenge Anwar's bail provisions or 
resolve an earlier impasse regarding the court venue. 
Anwar's conviction in this trial, which may last many months, 
could end his political career; the judge would decide 
whether Anwar would remain free pending an appeal.  This 
cable provides a primer for the Department's reference, 
including background on the 2000 conviction and the present 
case, a synopsis of the specific legal charges and penalties, 
a summary of likely evidence to be presented in court, and 
three possible scenarios for the trial. 
 
¶2.  (C) Comment:  The issue of the specific actions between 
Anwar and his aide will play out in court and, we suspect, in 
a very sensationalistic fashion.  The facts surrounding the 
case, however, make a compelling argument that the 
government's prosecution of the case is foremost a political 
act against the Opposition leader.  Whether the incident in 
question was wholly concocted or has some basis in fact, the 
case is not part of a morals campaign or a normal criminal 
matter and has been the subject of extensive political 
interference and manipulation.  As one consequence, much of 
the Malaysian public remains deeply sceptical about the 
government's prosecution of Anwar Ibrahim.  Anwar's flawed 
trials in 1998-2000 produced a public uproar and attracted 
international condemnation; in today's information-intensive 
environment, such effects may be exacerbated depending on 
events in court.  Embassy will provide draft press guidance 
for the Department's consideration prior to the July 8 trial 
date.  End Summary and Comment. 
 
Sodomy Case I, 1998-2000 
------------------------ 
 
¶3.  (SBU) Under the government of former Prime Minister 
Mahathir, Anwar Ibrahim was charged and convicted of sodomy 
(and abuse of power) in a sensationalistic trials in 
1998-2000, directed and heavily manipulated by Mahathir 
against his former deputy.  Anwar was charged with sodomizing 
his wife's driver.  During his pre-trial detention, Anwar was 
beaten by the then Inspector General of Police.  The High 
Court convicted Anwar of sodomy in August 2000 and sentenced 
him to nine years imprisonment.  The U.S. expressed deep 
concern with the first sodomy trial, noting "that the trial 
and (Anwar's) resulting conviction and nine-year jail 
sentence were marred by deep flaws in the judicial process." 
After Mahathir stepped down in favor of Abdullah Badawi, the 
Federal Court overturned the conviction in September 2004 and 
released Anwar from prison (Anwar's separate conviction for 
abuse of power remained in place).  The Federal Court found 
there were "many unusual things that happened regarding the 
arrest and confession" of certain prosecution witnesses, 
including the fact that Anwar's driver stated that he was 
paid to make the allegations against Anwar.  In an unusual 
move and possible political compromise, the Federal Court 
judges included in their judgment the conclusion that there 
was evidence to confirm "the appellants were involved in 
homosexual activities," but added that the prosecution failed 
to prove the alleged offenses beyond reasonable doubt. 
Because Anwar's conviction on the separate charge of abuse of 
power was not overturned, he was barred from political office 
until April 2008. 

Sodomy Case II, 2008 
-------------------- 
 
¶4.  (SBU) Less than four months after Anwar Ibrahim's 
People's Justice Party (PKR) and its opposition partners made 
significant advances in the March 2008 national elections, 
and three months after Anwar became eligible for political 
office, an aide to Anwar, Mohd Saiful Bukhari Azlan, filed a 
police report on June 28, 2008, alleging that he had been 
forcibly sodomized by Anwar on several occasions.  The 
following day, Anwar took refuge in the Turkish ambassador's 
residence, claiming that he feared a repetition of his 1998 
arrest and for his personal safety.  He remained with the 
Turkish ambassador for only one day, departing after public 
assurances of his safety from the Foreign Minister and Home 
Minister.  In the midst of a highly charged political 
atmosphere, which included Anwar's claims that he could bring 
down the government through Parliamentary defections by 
September 16, 2008, and new allegations linking then DPM 
Najib with the Altantuya murder case, the police 
investigation proceeded.  It came to light that Saiful had 
had contact with the office of then DPM Najib prior to 
working with Anwar, and more significantly Saiful had met 
with Najib (and allegedly his wife Rosmah) at Najib's home 
just prior to filing his police complaint.  Najib first 
denied publicly he had any connection with the case, and then 
acknowledged meeting Saiful, an admission that preempted 
internet reports about to be released by blogger Raja Petra 
(who is now a fugitive from sedition charges). 
 
¶5.  (SBU) As authorities made known their intention to arrest 
and charge Anwar for sodomy, Anwar's lawyers arranged for his 
voluntary appearance before police for questioning and 
charging.  Contrary to the agreement, on July 16, police in 
commando-style outfits waylaid Anwar's convoy en route to the 
police station and arrested him on the street.  Police 
questioned Anwar, took him to a hospital to provide a DNA 
sample (which Anwar refused, citing lawyers' advice and fear 
of "manipulation"), and held him overnight.  Anwar was 
released on police bail by a magistrate on July 17. 
 
The Charges 
----------- 
 
¶6.  (SBU) On August 7, 2008, prosecutors charged Anwar 
Ibrahim before a Sessions Court under Section 377B of the 
Penal Code, which reads:  "Whoever voluntarily commits carnal 
intercourse against the order of nature shall be punished 
with imprisonment for a term which may extend to twenty years 
and shall be liable to whipping."  Section 377A of the Penal 
Code defines "carnal intercourse against the order of nature" 
as including sodomy.  Prosecutors specifically charged Anwar 
with the sodomizing of Saiful Bukhari Azlan at a Kuala Lumpur 
condominium (owned by Anwar's friend) on June 26, 2008. 
Although Saiful originally claimed he was forcibly sodomized 
on several occasions, the prosecutors chose not to pursue 
charges against Anwar under a separate Penal Code section 
(377C), which pertains to non-consensual sodomy (with a 
higher burden of proof), and also to focus on only one 
alleged incident.  It is important to note that under 
Malaysia's legal system, prosecutors may amend the charges 
during the course of the trial.  Saiful himself does not face 
charges for the alleged acts.  The Court ordered Anwar to 
remain free on a personal bond of US $5,700 RM 20,000 and did 
not impose other restrictions (for example, Anwar has been 
free to travel abroad and has done so on many occasions since 
August 2008).  The government did not attempt to dispute or 
revoke the bail provisions. 
 
Wrangle and Delay over Court Venue 
---------------------------------- 
 
¶7.  (SBU) Following Anwar's formal charging, and with Anwar's 
9/16 deadline looming in the background, prosecutors quickly 
moved to transfer the case from the Sessions Court to the 
High Court.  The prosecution argued on September 10, 2008, 
that such an important case with possibly complicated legal 
issues should be dealt with at the High Court and produced a 
certificate signed by the Attorney General to move the case, 
which under normal circumstances automatically results in a 
transfer.  However, Anwar's lawyers objected to the transfer 
out of concern that the more politicized High Court level 
would result in a pro-prosecution judge hearing the case, as 
happened during the first sodomy trial in 1999-2000.  In 
November 2008, independent-minded Sessions Court judge 
Komathy Suppiah rejected the certificate of transfer, noting 
that Attorney General Gani Patail faced allegations of 
evidence tampering in Anwar's 1998 case and the transfer 
order signed by the AG would "undermine the public perception 
of the judiciary." 
 
¶8.  (C) Judge Komathy was overruled in March 2009 by High 
Court judge Mohamad Zabidin Md Diah who decided the Sessions 
Court has no authority to refuse the Attorney General's 
transfer order; Zabidin himself was then assigned to preside 
over the sodomy trial.  Anwar's lawyers filed an appeal 
against the transfer; the Court of Appeals only began to hear 
the appeal on June 30; based on precedent, Anwar's camp 
admits the appeal has little chance of success.  Zabidin 
initially attempted to schedule the trial to begin in May 
2009; defense lawyers argued they needed more time and hoped 
their appeal would be heard prior to the trial.  (Note:  The 
High Court often takes one to two years before setting trial 
dates in normal criminal cases.  End Note.)  Zabidin 
subsequently set the trial to begin on July 1.  Anwar's 
lawyers filed an application to compel the prosecution to 
provide them with full documentation and evidence that will 
be introduced at the trial, which the prosecution has thus 
far failed to do in apparent violation of the Criminal 
Procedure Code.  With the hearing on the disclosure of 
evidence set for July 1 (now pushed back to July 3), Judge 
Zabidin postponed the trial start to July 8.  The judge 
originally specified a three-week duration for the trial, but 
lawyers assume that the trial will take many months to 
conclude. 
 
The High Court Judge 
-------------------- 
 
¶9.  (C) High Court Judge Mohamad Zabidin Md Diah is a lawyer 
by training.  After private law practice, he joined the 
judicial service as a Sessions Court judge and was elevated 
to judicial commissioner in 2004.  After two years on 
contract, Zabidin was promoted to become a permanent High 
Court judge in 2006.  Zabidin is not a well-known judge and 
is not associated with high profile or controversial 
judgments, according to our senior legal contacts.  Anwar's 
lawyers allege that Zabidin is beholden to the government and 
will favor the prosecution; the judge's unusual rush to bring 
the case to trial is viewed by the defense as an early 
indication of his bias. 
 
Government Switches Gears 
------------------------- 
 
¶10.  (C) Senior government and UMNO party officials adopted a 
very aggressive public and private approach to the Anwar case 
during the June-September 2008 period.  This included 
frequent, prejudicial statements in public, and strong claims 
in private to other politicians and diplomats regarding 
Anwar's guilt.  This intensive phase encompassed the initial 
news of the allegations and Anwar's formal charging, but also 
Anwar's own aggressive political posturing and claims that he 
could bring down the government by September 2008 through 
Parliamentary crossovers.  After Anwar's deadline passed in 
September, and after resolution of the UMNO leadership battle 
in favor of Najib's succession in October 2008, we observed a 
definite toning down of the Government's approach, and a 
shifting to a lower gear.  For example, we did not hear 
reports of government intervention to quickly resolve the 
matter of the court venue, which effectively delayed the 
prosecution by some seven months.  Anwar's bail provisions 
remained in place and unchallenged.  Public statements by 
senior government officials, outside of by-election 
campaigns, became infrequent.  This toned down approach has 
continued through the present; it would fit within a 
hypothetical decision to demonstrate that the trial is a law 
enforcement matter, rather than a political battle. 
Regardless, it is clear that the government has not taken all 
the legal and extra-legal steps against Anwar that it could 
have since September 2008. 
 
GOM Confidence:  Waning or Recalculating? 
----------------------------------------- 
 
¶11.  (C) Many of our government and UMNO contacts have 
insisted to us, emphatically so in the early months of the 
case, that the evidence against Anwar is very conclusive, 
often hinting at video footage and physical evidence like DNA 
(see below).  Recently, some contacts sympathetic to Anwar 
but not part of his team claimed the government over time had 
become less certain it had sufficient evidence to convict 
Anwar.  According to one unconfirmed account, in June several 
key aides to PM Najib advised him to drop the case against 
Anwar because the evidence was not strong enough for an easy 
conviction and the political cost of forcing through a guilty 
verdict would be too high.  It is also possible that the 
toned down rhetoric from the government has been 
misinterpreted as uncertainty on the authorities' part. 
 
Evidence at the Trial 
--------------------- 
 
¶12.  (C) Based on available information, we believe the 
following evidentiary aspects will feature in Anwar's trial: 
 
Saiful's complaint:  The testimony of Saiful is central to 
the government's case, and he is expected to take the stand. 
Saiful has continued to assert that he was forcibly 
sodomized, although the charges under Section 377B do not 
require proof of a non-consensual act; given his youth (age 
23) and physical size, Saiful will need to explain specific 
circumstances of the incident to support his assertion of 
rape. 
 
Medical reports:  As publicly revealed by defense lawyers, 
Saiful underwent two medical examinations on June 28, 2008, 
just prior to lodging a police report.  The first examination 
by a Burmese doctor at a local hospital concluded there was 
"no conclusive clinical findings" suggestive of sodomy, and 
the doctor recommended he be examined at a government 
hospital in line with police procedures in such cases. 
(Note:  The Burmese doctor briefly left Malaysia after being 
held for questioning by police.  End Note.)  The second 
examination at the police-approved government hospital also 
failed to uncover medical evidence of sodomy, according to 
copies of hospital reports released by the defense. 
 
DNA:  The defense team believes prosecutors will introduce 
DNA evidence, based on DNA samples held by the police since 
1998, and are preparing expert witnesses.  The government's 
hurried passage in Parliament of a DNA bill, approved by the 
lower house on June 23, is widely seen as tied to the Anwar 
trial and will permit the government to utilize the 11-year 
old samples.  The defense could claim the samples were 
planted, as is widely believed to be the case in Anwar's 
earlier prosecution. 
 
Anwar's alibi:  Anwar's lawyers claim that five persons will 
testify that Anwar was with them at the time of the alleged 
incident.  They also claim that police attempted but failed 
to intimidate some of these defense witnesses to change their 
accounts. 
 
CCTV:  The prosecution may use CCTV footage from the 
condominium where the alleged incident took place to confirm 
Anwar's presence at a specific date and time. 
 
Character witnesses:  As happened in the 1999 case, it is 
very possible that prosecutors introduce witnesses to attack 
Anwar's character and actions aside from the alleged 2008 
sodomy incident.  There are unconfirmed reports that the 
prosecution will call 30 witnesses to the stand. 
 
Defense witnesses (PM Najib and wife Rosmah?):  In an effort 
to demonstrate the political motivation in the government's 
case, defense lawyers could call PM Najib, his wife Rosmah, 
and other senior officials such as Najib's aide Khairil Anas 
Yusof who appear connected to the case (Najib and Rosmah 
because they met Saiful and discussed his reporting to the 
police).  While this will make for momentary drama, we expect 
the judge to disallow such moves. 
 
Bail and other Conditions during the Trial 
------------------------------------------ 
 
¶13.  (C) Anwar's legal team has expressed concern that the 
prosecution may apply to revoke the personal bond that allows 
Anwar to be free pending the trial or seek to impose other 
conditions, such as impounding his passport or restricting 
his movement to within Kuala Lumpur.  The lawyers acknowledge 
that there is not a strong precedent for overturning the 
existing bail decision.  In several recent 
politically-charged court cases, however, Malaysian judges 
have ignored precedent decisions.  (Note:  We have no 
information on the prosecution's intentions in this matter. 
End Note.) 
 
What if Anwar is Convicted? 
--------------------------- 
 
¶14.  (C) Most observers conclude that a conviction in Anwar's 
case, one upheld on appeal, would essentially end Anwar's 
political career given the legal penalties and Anwar's age 
(62).  According to the Federal Constitution, a member of 
Parliament will be disqualified from holding his seat if he 
is convicted of an offense and sentenced to imprisonment for 
a term of not less than one year or to a fine of not less 
than US $570 RM 2,000 and has not received a free pardon. 
This stipulation comes into effect after all appeals are 
exhausted (at the Court of Appeals and Federal Court).  The 
constitution also provides that a convicted person can only 
be active in politics after five years from the date of his 
release from prison.  At age 62, a second conviction could 
effectively bar Anwar permanently from political life.  In 
the event of a conviction, Anwar will certainly appeal.  The 
judge will decide whether Anwar remains free pending appeal 
or immediately goes to jail.  While officially remaining a 
Member of Parliament pending the final outcome, he would be 
unable to operate from prison as the Opposition leader. 
 
Political Interference and Manipulation 
--------------------------------------- 
 
¶15.  (C) The issue of the alleged actions between Anwar and 
Saiful will play out in court, and sodomy, even a consensual 
act, is a crime under Malaysian law.  The facts surrounding 
the case, however, make it clear that the government's 
prosecution of the case is foremost a political act against 
the Opposition leader.  The Malaysian government does not 
aggressively prosecute cases of sodomy; we find record of 
some 55 cases since 1991, or an average of 3 per year.  The 
vast majority of such cases involve adults assaulting minors. 
 Anwar's prosecution is not part of a morals campaign.  The 
GOM does not aggressively target non-heterosexual behavior; 
if it did so, a recent cabinet minister, senior staff 
associated with PM Najib and other prominent citizens linked 
to the government also would find themselves under 
investigation. 
 
¶16.  (C) Aside from the immediate comparison with Anwar's 
previous prosecution for sodomy, which was grossly 
manipulated by former Prime Minister Mahathir, the 
indications of political interference and manipulation in the 
present case are compelling; much of the information is in 
the public realm.  Collateral reporting, not addressed here, 
provides further substantiation. 
 
Najib connection:  Keeping in mind that Najib and Anwar 
remain bitter enemies, it is striking that Najib met 
personally with the complainant Saiful prior to the police 
report, and allegedly arranged for Saiful to have intensive 
contact with senior police officials in the days before he 
filed the complaint. 
 
Senior officials' involvement:  From the very early stages, 
the senior-most officials in the government, including then 
PM Abdullah, current PM Najib, cabinet ministers, the AGO and 
national police chief (the latter two having played important 
roles in Anwar's 1998-1999 flawed trials) and officials of 
the ruling UMNO party have been intimately involved in 
decisions regarding the case, according to Embassy contacts 
and publicly available sources.  Despite the current 
toned-down government approach, and emphasis that the Anwar 
trial is a normal law enforcement matter, senior-most 
executive and UMNO party officials continue such a directing 
role. 
 
Leakage of information:  Senior government leaders provided 
law enforcement information on the case to leaders of Anwar's 
coalition partner, the Islamic Party of Malaysia (PAS), in an 
unsuccessful attempt to split PAS from the opposition.  A 
recent internet report claims that the government has 
provided some government-directed press editors with a "sneak 
preview" of evidence against Anwar. 
 
Public statements:  From the initial public reports of the 
complaint against Anwar in June 2008 to Anwar's election to 
Parliament in August 2008, PM Abdullah and other senior 
leaders spoke publicly and frequently about Anwar's alleged 
crime and the need for justice, and the case featured 
prominently in the parliamentary campaign against Anwar. 
There have been far fewer statements since September 2008, 
except during by-election campaigns. 
 
Press:  The Government-directed mainstream press, which 
includes all major dailies and all TV stations, provided 
extensive coverage of Saiful's allegations while severely 
limiting reporting on Anwar's response during the heated 
period of June-August 2008. 
 
Alleged intimidation:  The police detained for questioning 
the doctor who first examined Saiful, causing him to leave 
Malaysia temporarily out of concern for his safety.  Police 
also pressured the hospital in question to hold a press 
conference to state that the doctor was not qualified to 
conduct such an examination, according to our sources. 
According to defence lawyers, several of their witnesses have 
been threatened by police in an effort to change their 
testimony.  The Imam for the Federal Territories (including 
Kuala Lumpur and the administrative capital Putra Jaya) 
claimed publicly that he was forced to witness an "improper" 
Islamic oath taken by Saiful; he was subsequently sacked by 
the Prime Minister's Department. 
 
Customized Legislation, the DNA bill:  The government 
hurriedly prepared a bill on DNA evidence, following shortly 
after Anwar's refusal to provide a DNA sample at the time of 
his arrest, which compels suspects to provide samples and 
allows authorities to utilize previously stored samples in 
new criminal cases.  The government originally introduced the 
bill in August 2008 and voted it through the lower house only 
on June 23, 2009; several steps remain before it becomes law. 
 
 
Public Scepticism 
----------------- 
 
¶17.  (C) In the run-up to Anwar's August 2008 arraignment, 
public opinion polling conducted by the Merdeka Center, 
Malaysia's most respected opinion survey group, revealed that 
a preponderance of Malaysians believed the charges against 
Anwar were unjust, indicating a deep public scepticism 
regarding the government's case.  We understand that new 
polling on this question will be released before the July 8 
trial date.  Pollsters have informed us that the new data 
continues to reflect widespread public suspicions. 
Reportedly, only 15 percent of ethnic Malays and 10 percent 
of Malaysians overall believe Anwar's prosecution to be 
justified.  Outside of government circles, many Embassy 
contacts, including those who give credence to rumors of 
Anwar's personal life, take it as a matter of fact that the 
government is prosecuting Anwar for political reasons.  In a 
public statement made on June 24, former Bar Council 
president (and U.S. Woman of Courage awardee in 2009) Ambiga 
Sreenvasan urged the government to drop the charges against 
Anwar in order to restore credibility to PM Najib's ruling 
coalition. 
 
Scenarios 
--------- 
 
¶18.  (C) When viewed as a political matter, a number of 
potential scenarios for the Anwar prosecution present 
themselves; below we review three that are most apparent.  In 
these scenarios we assume that Najib will exercise the 
deciding voice on how and whether to proceed, though he also 
will need to weigh the opinions of other UMNO ruling party 
elites. 
 
-- Conviction at all costs:  Based on an assessment that 
Anwar is a threat to UMNO's continued rule at least at the 
time of the next national elections, Najib and UMNO elites 
decide that the political costs of prosecuting Anwar are 
acceptable and pursue the matter aggressively inside and 
outside the courtroom with the overriding goal of convicting 
Anwar and removing him permanently from politics.  While 
asserting that this is purely a law enforcement matter, the 
government exerts political pressure as necessary, accepting 
reputational risks in the process, and achieves a conviction 
after months of high-profile drama in the courtroom.  The 
courts hear and reject Anwar's appeals in an expedited 
manner, well ahead of the next national elections in 2012 or 
¶2013.  This scenario appeared to be in play during the 
initial months of the case and in the lead up to Anwar's 
September 2008 deadline to overturn the ruling coalition's 
majority; it has been less apparent since then.  Recalling 
the deep personal animosity between Najib and Anwar, and the 
singular importance of Anwar to the opposition coalition, 
this scenario remains plausible, even though Anwar's 
immediate threat to UMNO's rule has passed. 
 
-- Merits of the case, reputational damage:  In a second 
scenario, the government proceeds with the prosecution but 
refrains from exerting undue pressure to achieve conviction, 
believing that the evidence presented and/or the court 
proceedings themselves will sufficiently damage Anwar's 
reputation and this will outweigh harm to the Najib 
administration's credibility.  Conviction remains the desired 
outcome, supported by sufficient evidence, but the government 
accepts some risk of a final verdict of innocence after all 
appeals are heard.  This scenario rests on the assumption of 
sufficiently clear evidence against Anwar that will swing 
public opinion in favor of the government even in the event 
of an eventual acquittal.  Absent greater information on the 
government's evidence against Anwar, it is difficult to judge 
the prospects for this scenario. 
 
-- Withdrawal:  In a third scenario, Najib and UMNO elites 
decide that the government's case is not strong enough to 
pursue, entails unacceptable political costs, or is no longer 
necessary because of the diminished threat from Anwar.  The 
government withdraws the charges prior to the trial start of 
July 8, or shortly after the trial begins, possibly under 
conditions of "discharge not amounting to acquittal." 
(Lawyers tell us that such a discharge in theory would allow 
the government to reactivate the case at a future time, thus 
maintaining this as a lever over Anwar.)  Najib, confident 
that he can beat back an opposition challenge in the next 
election, attributes the original decision to prosecute to 
the previous administration of Abdullah Badawi and takes 
credit for respecting the rule of law in this high profile 
case involving his determined political nemesis.  In contrast 
to 2008, Najib's currently secure position as UMNO leader and 
Prime Minister, along with Anwar's diminished threat, make 
this scenario a political possibility, though some UMNO 
elites and perhaps Najib himself may not want to give up the 
opportunity to remove Anwar Ibrahim from politics once and 
for all. 

KEITH