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Making sense of Anwar Ibrahim’s conviction for sodomy

Malaysia’s Anwar Ibrahim has had to endure not one but two convoluted sodomy trials. The first began in 1998, resulting in a conviction which was eventually overturned in 2004. The second commenced in 2010 resulting in an acquittal, but this was overturned in 2014 and upheld on 10 February 2015. In six words: convicted, appealed, acquitted; acquitted, appealed, convicted. The poor man could be the world’s first deputy premier-turned-opposition leader to have been twice acquitted and convicted of sodomy.

Setting questions about judicial irregularities and political interference aside, Anwar’s trials also reflect the struggles of wider Malaysian society regarding sexual diversity. Actually you can practically hear smug Islamophobes crowing that being tried for sodomy in the first place is proof that Muslim-majority Malaysia is yet another hotbed of homophobia. Is it?

Anwar was charged both times under anti-sodomy provisions in Section 377 of the Penal Code, a legacy of British colonialism – introduced in India by the British in 1860 and duplicated in vast tracts of the Empire including colonial Malaya in 1871. As of 2009, however, there have been only seven charges brought under Section 377a since 1938, and four of these are connected to Anwar. But the Malaysian government says this is not politically motivated.

If the government had so wished, Anwar could have been charged for liwat (male anal sex) under the syariah laws but was not. In Malaysia, a Muslim who commits an offence that can be tried under civil or Islamic law is prosecutable in either a civil or syariah court. But it is unclear who decides which court gets to try the case and how this decision is reached.

Under Malaysian law, syariah offences also include incest, prostitution, ‘sexual intercourse out of wedlock’, ‘an act preparatory to sexual intercourse out of wedlock’, khalwat (illicit proximity between a man and a woman), and cross-dressing. The cross-dressing provision is often used to target transsexual women, often violently, but the Court of Appeal recently ruled that such aspects of syariah are unconstitutional and violate human rights.

Syariah enforcers are empowered by law to go on khalwat raids, but when these go awry they provoke public outcry. Homophobic and transphobic laws are thus part of a wider environment of moral policing which also affects heterosexuals.

Given this legal and political climate, it is surprising that homophobic campaigns or vigilantism do not seem to gain more traction. In the wake Anwar’s first sodomy trial, supporters of then Prime Minister Mahathir Mohamad formed the People’s Voluntary Anti-Homosexual Movement (Pasrah), which quickly fizzled out. The build-up to his second trial saw the emergence of the Anti-Sodomy Movement (Geli), but there has barely been a peep out of them since 2010.

Of course, this does not mean that Malaysia is a gay paradise or that Anwar’s sodomy trials have nothing to do with actual homophobia: many Malaysian Muslims and non-Muslims probably would not condone things like same-sex marriage or even heterosexual sex outside marriage. But neither does this mean that they would necessarily endorse the violent persecution of sexual minorities.

Laws restricting freedom of expression mean that many Malaysians probably will not or cannot express their deeper thoughts or misgivings about civil or syariah anti-sodomy provisions, which makes it difficult to gauge public attitudes.

Again, within this climate, it is amazing that people do try to speak up. There is Zaid Ibrahim (not related to Anwar), the former de facto Law Minister, who has condemned the state-led persecution of Anwar and called for the repeal of anti-sodomy laws. Former Prime Minister Mahathir’s daughter Marina is herself a member of the Muslim feminist group Sisters in Islam and regularly defends lesbian, gay, bisexual and transgender (LGBT) rights.

In the absence of an established LGBT movement, a wide range of civil society groups are also increasingly vocal in defending LGBT rights. Yet we should also not forget the anti-Anwar factor among those who distrust his politics and Islamist past, including LGBTs, making them reluctant to criticise the anti-sodomy laws.

So while Anwar’s sodomy trials reflect the prevalence of homophobic laws and attitudes among some Malaysians, this is not the full picture. These nuances will be lost on neo-Orientalists who will no doubt harp about how this is yet another example of ‘Islamic’ homophobia or assume that Malaysians, like other non-Westerners, are barbarians, victims or dupes. They will also be lost on Islamist ideologues who think only full syariah law can ensure justice for ‘true believers’ and insist that sexual minorities are scum.

The rest of us need to be able to hold more than one idea in our heads. Yes, this is about political homophobia as a weapon to end Anwar’s career, but we also have to watch for whether it translates into more widespread vigilantism. It’s also about competing expressions of Islam within the context of a weakened authoritarian regime that is manipulating religion to retain support.

Anwar maintains his innocence and many Malaysians are on his side. Already, one of his daughters, Nurul Nuha, is calling for a ‘march for freedom’ to oppose injustice. But it would also be reasonable to ask if these laudable goals include ending the manipulation of Islam by the authorities to persecute those they construe as ‘sexual deviants’, including LGBTs.