Democracy Lab

Same As It Ever Was

Once again, Malaysia's ruling party turns to outdated sodomy laws to discredit the opposition.

On March 7, Malaysia's opposition leader, Anwar Ibrahim, was sentenced to five years in prison for sodomy. This is just the latest iteration in a long and unfortunate history of using sodomy laws against political rivals.

In 1307, King Philip IV of France, deeply indebted to the Order of the Knights Templar, accused the Knights of sodomy and used this as a pretext to dissolve the order. In 1533, King Henry VIII of England promulgated the Buggery Act, accused monks of sodomy, and used that as an excuse to confiscate their monastic lands. King Henry also disposed of his opponent Lord Hungerford by executing him for sodomy in 1540. He had discovered what King Philip realized two centuries earlier: Sodomy accusations are an effective way of getting rid of pesky creditors and trouncing political opponents.

Indeed, what is most exasperating about the verdict of Malaysia's Court of Appeal in the "sodomy" trial of the opposition leader and former Deputy Prime Minister Anwar Ibrahim is precisely that: It is so politically effective.

The March 7 verdict overturns a 2012 acquittal of Anwar on sodomy charges, effectively taking him out of political life at a crucial time. He was poised to run in an important by-election for state assembly, which, if he won, would have made him eligible to take over as chief minister of Selangor, Malaysia's most prosperous and developed state. Candidates were required to file applications to run for office on March 11, but Malaysian electoral law prohibits people convicted of a criminal offense from running for office.

Anwar has appealed to Malaysia's highest court. If it upholds the conviction, he will be forced to give up his parliamentary seat and go to prison. (In the photo above, an optimistic Anwar leaves the court of appeals on March 7.) In addition to the five-year sentence, Malaysian law would prohibit him from running for office for another five years after he serves his sentence. Anwar, now 66, would be 76 before he could resume active political life.

That may be comforting for Prime Minister Najib Razak and the ruling Barisan Nasional coalition, which has ruled the country in various forms since its independence from Britain in 1957. Under Anwar's leadership, the opposition Pakatan Rakyat coalition has become a potent electoral threat. It won a majority of the popular vote in the May 2013 election, though gerrymandered districts kept it from winning a majority of seats. Anwar is the linchpin for that coalition, holding together three disparate political parties, and has become a political thorn in Najib's side. The leader's conviction would spell doom for the opposition party.

Sodomy laws, an antiquated relic of British colonialism, have been used to hound Anwar since 1998. He was ousted as deputy prime minister and jailed on trumped-up sodomy and corruption charges, but freed in 2004 when Malaysia's highest court overturned the sodomy charges. According to the Women's Candidacy Initiative, a Malaysian organization, it's telling that the sodomy laws have only been invoked seven times since 1938 -- and in four of those instances, against Anwar.

In 2008, Anwar's male aide, Mohd Saiful Bukhari, accused him of rape. Police determined that the then 60-year-old Anwar, plagued with back problems, could not have sexually assaulted the healthy 23-year-old Saiful. The charges were changed to consensual sodomy, although Saiful was never charged. During the trial, Saiful admitted that on June 24, 2008, two days before the alleged rape, he had met with the then-Deputy Prime Minister Najib and his wife.

From the outset, the case against Anwar was plagued with irregularities. During the trial, the prosecution refused to turn over key evidence, in spite of requirements in the Malaysian criminal procedure code, including its witness list and witness statements, doctor's notes, pharmacists' worksheets and notes on DNA testing and analysis, and closed-circuit television recordings from the condominium guardhouse where the alleged sodomy took place. Meanwhile, the Kuala Lumpur hospital report, authorized by three doctors, found "no conclusive clinical findings suggestive of penetration to the anus."

Anwar was acquitted by the High Court in 2012, based on concerns that DNA evidence brought by the prosecution was tainted. The judge ruled that without the DNA evidence, there was no corroborating evidence other than the word of the accuser and so acquitted Anwar. The government appealed, leading to the recent judgment and five-year sentence.

Yet this is not quite the end of the legal road, since Anwar is free on bail pending his appeal to Malaysia's highest court. But the accusations and court trials have taken their political toll. The charge itself -- sodomy -- pejorative even in name, has the effect of discrediting and weakening the political opposition in Malaysia.

Laws that criminalize consensual sex between adults, such as Malaysia's Criminal Code article 377, contravene broadly accepted international legal standards. The United Nations Human Rights Committee held in 1994 that sodomy laws violate rights to privacy and non-discrimination.

The use of sodomy laws as a political tactic in such a high-profile case is likely to inflict collateral damage on Malaysia's vulnerable LGBT community. The appeals court's ruling comes at an especially critical time: A case challenging the constitutionality of Malaysia's cross-dressing laws (under which transgender women are regularly arrested) is to be heard before the same court this coming May. The government should show that it protects all of its citizens and promptly repeal its sodomy and cross-dressing laws.

Prime Minister Najib has now joined ranks with King Philip and King Henry in resorting to accusations of sodomy to settle political scores. The trial and conviction of Anwar should be seen for what it is: an underhanded move by the ruling party to tarnish and weaken the political opposition without regard to the harm caused to the nation's judiciary and democratic process.



A Ship Without a Rudder

The institutions of the Egyptian state are out of control -- and it is unclear if even Sisi can bring them to heel.

In the midst of Egypt's authoritarian relapse, one aspect of the current chaos is particularly alarming: Nobody is actually in charge. While the military as an institution and Army chief Abdel Fattah al-Sisi have both emerged with their positions greatly enhanced, it is a mistake to see the trajectory of events in Cairo as the outcome of an orderly, centralized decision-making process. In fact, the current moment shows just how far the Egyptian state has fragmented during the past three years.

The military-backed interim government has embarked upon an effort to disable the Muslim Brotherhood, chill dissent, and restore stability through repressive means. Within this environment, however, critical decisions are often made haphazardly -- and are confined to security issues, ignoring the country's daunting economic challenges. Some current and former senior Egyptian civilian officials openly wonder if the security state, cheered on by a frenzied and manipulated media, can even be restrained.

Egypt's ad hoc decision making has had disastrous consequences on at least two recent occasions. First, the government designated the Muslim Brotherhood as a terrorist organization in late December. This legally dubious decision was not the result of a careful investigation, but rather set in motion in the panicked aftermath of the Dec. 24 bombing of the Mansoura police headquarters, which killed at least 14 people and injured dozens.

Following the bombing, Cabinet spokesman Sherif Shawki accused the Muslim Brotherhood of showing its "ugly face as a terrorist organization, shedding blood, and messing with Egypt's security." This spontaneous characterization of the Brotherhood -- apparently aimed at focusing public anger on a well-known enemy -- was not immediately supported by then Prime Minister Hazem el-Beblawi. Nonetheless, the statement sparked intense media attention on the Brotherhood's status, creating pressure for an official designation. The Cabinet soon obliged, officially designating the Muslim Brotherhood a terrorist organization -- without even backing up its decision with evidence of the Brotherhood's complicity in the Mansoura attack. This momentous step appears to have been taken with very little forethought or planning, despite the fact that the designation could ruin future efforts to reach a political settlement.    

Egypt's unsettled political state and dark public mood have also created strong incentives for hardline action, while simultaneously erecting obstacles for correcting even the most egregious excesses. The new government's second stumble, the now infamous arrest of al Jazeera English's Cairo staff at the Marriott hotel in Zamalek, exemplified these dynamics perfectly.

Following the journalists' arrest, government authorities, including the Interior Ministry, had launched discussions on how to deal with the detained journalists. But without prior consultation, the public prosecutor moved forward in formally charging the detainees. Despite the absurdity of the charges and their corrosive impact on the country's reputation, the referral raised the costs for correcting the original mistake by formally entangling the case in the machinery of the criminal justice system.

Voices within the government realized this escalation was a blunder. Even after the referral, various officials called for a speedy resolution of the case and sought ways to have the detainees freed. However, de-escalation would have required a major internal fight, direct intervention in an ongoing judicial matter, and was guaranteed to produce a public backlash. In the current climate, there were no takers for that leadership role.

These blunders paint a disconcerting picture: Even if Egyptian leaders wanted to restrain the repressive and vengeful impulses of the security apparatus, it is unclear how they would do so. And for Egyptian officials, who are keenly aware of public perceptions, the mood of national hysteria is now a further check on any potential restraining action. As such, media manipulation has emerged as a critical tool for government hardliners in setting the terms of public discourse. The institutions of the Egyptian state are out of control -- and it is unclear if anyone can bring them to heel.

This discussion will soon be centered on Egypt's next president, following the formality of elections later this spring. When he takes office, Sisi will enjoy considerable and unrivalled institutional backing, which will stand in stark contrast to the drift and opacity of the post-Mubarak period. At that moment, President Sisi will be faced with a fundamental choice: Will he use his political capital and stature to stitch the Egyptian state back together again, or will he continue the unsustainable efforts to use repression to re-impose stability?

The need for course correction is obvious. Egypt's current trajectory is ruinous, and has further exacerbated the country's interlinked political, economic, and security crises. How Sisi plans to get the country back on track is far from clear: Interestingly, some senior Muslim Brotherhood officials continue to see him as a potential interlocutor, based largely on their past dealings and an assumption that he is not fully aligned with the factions in the government seeking the Brotherhood's wholesale eradication. However, this is all conjecture for the moment, as Sisi has not yet sought to dial back the intensity and scope of repression since President Mohamed Morsi's ouster; rather, he's been a key figure in constructing public support for Egypt's "war on terror."

Sisi's decision to run for the presidency is itself a fraught one. The potential downsides are manifold: His election will re-concentrate authority in the office of the presidency, undermine state institutions, and reintroduce military dominance in civilian politics. Sisi's presidency also holds serious risks for the military itself, which has invested its prestige into his candidacy. The military has traveled a long way since its position during the Mubarak years as the silent guarantor of regime stability -- if Sisi falters, the entire institution's popularity and credibility will suffer, with potentially disastrous effects for Egypt.

In spite of these concerns, several Western diplomats who have been highly critical of the military's ouster of Morsi have indicated privately that they would like to see a Sisi presidency. They see this step as the necessary consequence of the July 2013 coup -- the assumption of ultimate responsibility for Egypt's future and the establishment of clear lines of authority.

However, even if President Sisi seeks to firmly take the reins of Egypt's runaway institutions, it would be a mistake to assume that any one man could easily undertake such a task. While the military's constitutional powers have increased progressively throughout the transitional period, the institution has consistently declined to be responsible for political decision-making. This was on full display during the stewardship of the Supreme Council of the Armed Forces (SCAF) following the toppling of Hosni Mubarak: Disempowered and wary civilian leaders were placed front and center, unsure of their actual authority and lacking clarity as to the ultimate intent of the military, which consistently avoided making critical decisions.

This pattern largely continues, despite the preeminent position of the Egyptian armed forces. The inescapable conclusion is that, as a result, no one person or institution is actually attempting to run the country. When presented recently with the need for the military to rein in the malignant police forces, a senior Egyptian general essentially threw up his hands, asking rhetorically, "What can we do about the police?"

While the general's response may be the playacting of the disingenuous "good cop," there is no doubting that the military has either been unwilling or unable to tame Egypt's infamous Interior Ministry. More than ever, the various arms of the Egyptian state are acting according to their own whims. The Mubarak regime's fall began a process of devolution of authority, which was in several important instances formally enshrined in the recently-adopted constitution. The military and the judiciary now have greater autonomy than ever before, while the absence of any unifying authority has meant that the ties that bind the various organs of the bureaucracy have withered.

All of these problems are about to fall right in the lap of soon-to-be President Sisi. He may not be able to correct everything that ails Egypt or put the country on a course of near-term democratization -- but he might have a real opportunity to tame the jingoism of a fabulist media, rein in a brutal and unchecked police force, and quietly dial back the worst excesses of state repression. Only a President Sisi, with the backing of the military and his credibility with the public, can contemplate such steps.

But his window of opportunity may be fleeting. Given the dire state of the country and the near-certainty of economic deterioration, Sisi's popularity could soon wane. While the world of make-believe cures and hollow nationalism may provide a superficial veneer for the coming presidential campaign, Sisi will soon have a choice -- and the future of Egypt will depend on whether he is up to the task. If the past is indeed prologue, then that future will be a bleak one.