Anwar Ibrahim, former deputy prime minister of Malaysia and currently a leading opposition figure, was found not guilty of sodomy the other week.
This was a very important moment for Malaysia (and it’s unambiguously good news: no consenting adults should ever be prosecuted in any court for their sexual behavior, alleged or otherwise, in any country). But as Malaysian politics tends to veer from scandal to scandal pretty rapidly, I didn’t have much to say about it at the time. Now, with the perspective that we get from a week and a half of debate and commentary on the verdict and its implications, let’s examine what we learned about Malaysian politics more broadly from this particular event. I think that the answer is ” a little, but not much.”
Why do this? Because high profile political events like this one are one of the few windows that scholars and activists have into the inner workings of non-democratic regimes. Malaysia is what political scientists call a competitive authoritarian regime, in which the formal institutions of democracy (multiple parties, elections, etc.) exist but in which electoral procedures and government institutions are stacked so in favor of the ruling party (or parties) that the regime cannot be considered democratic. You cannot just ask political elites about how these regimes work because they will not respond, and if they do, you should worry that they are lying (are you really as popular as these election results suggest?—“yes, of course, the people just love us that much”; do you ever use the legal system as a tool to prolong your rule?—“no, of course not, we just prosecute criminals”). By the same token, you cannot just ask the opposition how the regime works, because they have an incentive to misrepresent how evil and Machiavellian the regime is, or to attribute capabilities to the regime that it actually does not have.
So if you can’t rely on the reported views of the actors themselves, what do you do? Consider the observation that politicians are goal-seeking individuals. Instead of asking them what they do and why, we can closely follow what they actually do, and from that, with the right assumptions, make inferences about what their motivations are, what tools they have at their disposal, and what constraints they face. On that note, the Anwar verdict has the potential to tell us about a couple of things. First, the relationship between the executive and the judiciary: does this verdict mean that Malaysia’s judiciary is more independent than we once thought? Second, the position of the government coalition: are they comfortable with how politics is going for them, or are they worried and trying to find ways to strengthen their position?
We can start by laying out some facts about contemporary Malaysian politics.
Fact 1 (Illegality of Sodomy): In Malaysia, sodomy is illegal. It is perfectly compatible with Malaysia’s legal system to prosecute an individual for having allegedly committed sodomy, although this very rarely happens.
Fact 2 (Judicial Non-Independence): Malaysia’s judicial system has a history of vulnerability to high-level political interference from members of UMNO. This came to a head in the 1988 constitutional crisis.
Fact 3 (Shaky BN Dominance): Ever since the 2008 electoral tsunami, in which the opposition—without explicitly coordinating—denied the BN its 2/3 majority in the Dewan Rakyat for the first time since 1969, it has been an open question whether or not the BN has the political strength that it once had.
Fact 4 (Anwar’s Popular Appeal): Although Anwar’s popular appeal is perhaps a bit overstated by his supporters, there is no doubt that he helps to coordinate various opposition constituencies (Islamists, liberals, social democrats, and so on). In person, his charisma is no less than Clinton-esque.
Combine Facts 1-4 and we can infer that it would be in the BN regime’s interest to use allegations of homosexual behavior as a way to persecute (and potentially to imprison) a troublesome opposition figure. In fact, no serious analyst of Malaysian politics that I know disagrees with the basic view that Anwar’s recent sodomy trial was all about politics.
So that’s not surprising or controversial. What’s surprising is that Anwar was acquitted: The court held that the “genetic evidence” might have been “contaminated,” and absent corroborating testimony on the act, the court could not convict him. If the regime is powerful enough to bring charges, and it’s been able to use the legal system to its benefit in the past, what do we conclude from the fact that the courts did not issue a guilty verdict? Is the judiciary more independent than we thought? Is Anwar more popular among the country’s administrative elite than we thought?
Possibly. But there are other interpretations that are consistent with these facts too. In fact, I can think of at least four.
Interpretation 1 (Judicial independence): The Malaysian judiciary is more independent than we thought, and the case was decided on its merits.
Interpretation 2 (Political non-interference): The Malaysian judiciary is not independent, but the BN/UMNO/murky Malaysian elite insiders chose not to interfere in its deliberations. Perhaps they are indifferent to the verdict, the main goal was just to humiliate Anwar, or to distract him, with the trial. (I like to call this the LBJ strategy.) The expected utility of fiddling directly in the judicial proceedings and getting caught is less than the expected utility of just letting Anwar and his lawyers talk about sodomy in open court for a couple of months.
Interpretation 3 (Political interference after miscalculation): The Malaysian judiciary is not independent, but the BN/UMNO/murky Malaysian elite insiders interfered in its deliberations to ensure an acquittal. The insiders did this because the trial against Anwar has backfired in terms of public opinion, and a guilty verdict would hurt the BN.
Interpretation 4 (Judicial revolt): The Malaysian judiciary is not independent, but it is also not apolitical, and it sided with Anwar over the BN.
I want to say that Interpretation 1 is correct, but the facts don’t point unambiguously in that direction. If I had to guess, it would be Interpretation 2—but that’s only a guess.
ADDENDUM: Interesting meta-political angle on this. One prominent analyst of Malaysian politics was misquoted in Malaysia’s official news agency, Bernama, as having said that “the verdict proves that the judiciary is independent.” What he actually said was that it would be good politics for the Prime Minister to follow through with political reforms following Anwar’s acquittal; it was the BN itself that said that the ruling was proof that the judiciary is independent.
Was this misquoting deliberate? If so, what does it mean? Consider what we might call Fact 5 (Politicized Media): Bernama can serve as mouthpiece of the BN. Is it part of the regime’s strategy to get a not-guilty verdict so that they could highlight their non-interference (which would be consistent with Interpretations 2 and 3)? I have no idea: at this level we’re almost reading tea leaves. But I wouldn’t dismiss this interpretation altogether.
ADDENDUM 2: Mohd Saiful Bukhari, Anwar’s alleged “victim,” is appealing the not-guilty verdict.