The Ides of March[1]
The condemnation and sentencing of Anwar Ibrahim on 6th and 7th of March in the grandiose setting of Istana Kehakiman in Putrajaya were a political act disguised as legal procedure.
With a savagery that reminded one of the brutal stabbing of Julius Caesar, the prosecutor pursued his victim with further vituperation, while the condemned man and several in the audience called out, "Enough, sit down, you have got what you wanted."
The final act of this trial fiasco displayed openly the malignancy of the forces at work.
The condemnation and sentence had been delivered abruptly and without the explanatory detail which would follow later. Time was running out and the matter must be accomplished without delay.
After delivering the verdict, and without pause, the judge proposed that he would proceed to mitigation pleas. Counsel for the defense protested that a mitigation plea required time to prepare. He was given one hour to do so and the panel of judges retired.
An hour later, Karpal Singh, the defence lawyer, explained the medical problems of his 66 year old client, back injury and heart disease. He asked for a delay of one week for a medical report which would be an essential component of the mitigation plea. However, the judge was urgent he needed to close the case. He was directly challenged and asked whether he denied the relevance of a medical report. Yes, he denied the relevance. Karpal disagreed and refused to enter further pleas. The opportunity to counter the non-existing plea passed to the prosecutor who had well prepared a summary of the most grievous aspects of the case, and of previous cases relating to Anwar. His harangue led to cries of 'Enough' from the convicted Anwar and the audience in the public gallery. Several persons, including lawyers in the defence team left the court.
Finally, Karpal played his last card and asked for a delay in execution of the sentence to allow consideration of aspects of the case by the Federal Court. A stay was granted and bail of 10,000 RM imposed to be paid on the following Monday. It was small respite in an act of political savagery which ended the possibility of Anwar's intended candidacy submission for a Selangor State Assembly by-election on the following Tuesday, and possibly destroys his political career.
The Charge of Sodomy
Whatever opinion one may hold on the complex events which led to the current trial of Anwar, the use of the courts and an antiquated charge to achieve a political aim is unacceptable. The crime of sodomy has long been obsolete in democratic countries. While a forced act of sodomy would of course be an act of criminal aggression, the field of law on which Anwar was challenged was the act of sodomy itself. It is long agreed that the sexual behaviour of the individual is guarded by the right to privacy, and also that sexual orientation is the free right of each person. The criminal charge of sodomy is a survival of British colonial rule which lies dormant in several legal systems of former colonies. Unfortunately, it has found new relevance in Muslim countries[2] which, although they are nominally secular states, add a religious sanction to a crime bypassed by a tolerance which must prevail under democracy. The problem with the criminalization of homosexuality is that it involves emotional stigma and outrage which colours and perturbs legal process. A man may emerge unscathed from a failed charge of murder, but a charge of sodomy is a different matter entirely; the charge itself is an embarrassment making fragile the presumed innocence of the accused. The matter is well left to the give and take of human opinion or to the courts of sharia for those accepting their jurisdiction. The vindictive hounding of Anwar for political motives should not be tolerated on grounds of such inappropriate law.
The Appeal Court of March 6th and 7th
In theory the subject of the Appeal Court against the decision of an earlier appeal court should be limited to the precise technicalities considered suspect in the earlier hearing. But in practice no part of a trial can be excised from general consideration, but unsubstantiated criticism of earlier sections of the trial should not have been tolerated. The prosecutor, Muhammad Shafee Abdullah, made capital out of the refusal of Anwar to enter the witness box in the first appeal hearing, implying guilt in exercise of the right to silence by an accused. The day for such an accusation was not the appeal court.
Technical Nature of DNA evidence
The appeal hearing of the 6th and 7th was badgered by the highly technical nature of DNA evidence. Of all those who based their submissions on technical aspects of the DNA evidence, no one, judge, prosecutor or defense attorney had the technical knowledge to do so. Comments on legal aspects of the evidence are matter of the appeal but technical reappraisal of value of the evidence is another matter. At the very least an expert on DNA evidence should have been on standby to answer technical queries on issues which questioned previous evidence. Instead the court was treated to a high speed summary of opinions by Deputy Public Prosecutor Noorin Badaruddin who quoted here and there case histories which could not be assessed by anyone in the court room. During the first trial fully accredited experts gave their assessments and submitted to questioning by prosecution and defense[3]. In the present appeal these witnesses were referred to as "armchair specialists"[4] and their testimony dismissed by name calling. The credentials of these experts had been examined and their testimony accepted in their presence at the earlier trial. Why and by what acceptable legal reasoning was their testimony rejected in their absence and without the compliance of any informed authority?
The Heart of the Matter
The central argument of the prosecution was rejection of the charge of contamination of the DNA samples as presented by the defence. There are three elements to the charge that the samples were contaminated:
- The pristine state claimed by the examining chemists of the DNA evidence conflicts with the likelihood of an expected deterioration. There were unexplained delays in the whole process of examining the DNA. First the witness, Mohd Saiful Bukhari Azlan, who claimed to have been sodomised, waited two days before reporting the event in a government owned hospital. He avoided defecating in this period. However the moist and biologically active anal channel would not have favoured preservation of DNA. Secondly, after the extraction of swab samples from his anus on a Saturday evening, the samples were placed in individually labeled receptacles and placed in an overall plastic container. They were given into the care of a police officer, Deputy Superintendent of Police Jude Blacious Pereira, who was present during the medical examination. Pereira, appointed investigating officer for the case, was instructed to keep the samples in a freezer over the weekend. Ignoring this instruction he left them in his office filing cabinet. Further, although not instructed to do so, he opened the plastic container and relabeled some of the containers. Finally, instead of delivering the samples to a testing laboratory on the Monday morning he did so on Monday evening. The time lapse between the time of the alleged sodomy and examination by the testing laboratory was at least 96 hours. According to expert opinion severe deterioration of the samples would occur under the conditions of storage and length of delay of the sequence. Against the opinion of the expert witnesses referred to earlier the court heard reference to case histories collected by a person having no knowledge of Forensic DNA testing[5].
- Apart from the first re-labeling of the samples by Pereira, the examining chemist also re-labeled some samples, casting doubt on the identity of the samples which had supposedly come from different regions of the rectum.
- The examining chemist, besides the DNA of the complainant and of Anwar, also detected DNA of another male. Under careful checking this third DNA source was confirmed. If contamination of the samples is excluded what was the origin of this third source? This question was unanswered, putting in doubt the denial of contamination.
- The veracity of the two persons involved in provision and custody of the samples is suspect. If Saiful is truthful in denying that he is homosexual, what is the origin of the third DNA source? Besides, in his original testimony he claimed that the act of sodomy was consensual, while later he charged that the act was forced. Being consensual or not is irrelevant to Malaysian law so that this aspect was ignored, but it does throw suspicion on the veracity of the complainant.
Pereira, for his part, has a history of untruthfulness which led to a refusal of the Malaysian Bar Association to accept his membership.
Interpretation of Justice
While the main protagonists, prosecutor Shafee and defending lawyer Karpal, maintained the façade of learned friendship, their antagonism for each other broke through, leading to rebuke from the bench: Presiding judge Balia Yusof Wahi then sternly ordered all parties to behave. But sodomy is a not a charge suitable for legal debate, and it was to be expected that important issues at the basis of legal process would emerge.
The first attack on basic issues came from the prosecution which questioned the notion of reasonable doubt. Shafee pointed out that beyond reasonable doubt does not imply 100 per cent certainty. No human judgment can attain 100 percent certainty but this shortfall of certainty does not constitute reasonable doubt. This led the prosecution to further precisions. Does the admitted opening of the outside plastic bag in which the samples were stored constitute tampering? Not, Shafee held, if the individual bottles holding the samples were not opened. The prosecution based its case on the integrity of these individual bottles.
Next the prosecution questioned why Anwar did not submit to cross examination during his earlier trial, implying guilt to this exercise of the right to silence.
Karpal responded to the issue of reasonable doubt that while beyond reasonable doubt might be sufficient for prosecution, it had another meaning for the protection of innocence. Although no further explanation was given, the likely meaning is that a lesser doubt should be enough to invalidate a case and thus protect the presumption of innocence, than a larger doubt in the case for the prosecution.
Karpal insisted on the expectation of deterioration of a DNA sample kept without the protection of freezing for a total of 96 hours between the sodomy incident and the examining laboratory. It was also incomprehensible that no degradation at all was observed in some samples while in at least one sample some degradation was observed, although all the samples had gone through the same treatment.
To avoid the suspicion of contamination the prosecution must have some explanation of the third party contamination observed.
The defence further queried the sources of the DNA specifically tested, and proposed that separation of the semen cells from non semen cells was not properly carried out.
The prosecution quoted case histories including one which indicated that sperm had survived in a rectum for 130 hours. However without assessment by expert witness the quotation of such examples is meaningless.
Mitigation
Finally, the question of mitigation of sentence was hard fought between prosecution and defence. Karpal Singh emphasized that mitigation is an integral part of a trial. He insisted that there was no necessity to rush the trial. He recalled that sentencing is about the offender, not the offence, and that a medical report was required before sentencing. He declined to proceed with a submission on mitigation.
In his intervention regarding mitigation, the Prosecutor became vociferous on the enormity of the crime, that it had been inflicted on a subordinate by a person in authority. He referred to past convictions of Anwar, finally likening the case to the infamous Profumo case, implying that Anwar's action was a National Security Issue, subject to a maximum sentence of 20 years.
The excesses of the prosecution's arguments against mitigation of sentence lead to noisy protest in the court, and the threat of expulsion of protesters by police.
The judges hurriedly imposed a sentence of five years, but allowed suspension of execution in deference to a Federal Court decision.
Reflection
Several times Karpal Singh queried the rush to impose sentence. Of course everyone in the court and throughout Malaysia was aware of the issue at stake. It was necessary to impose a criminal sentence on Anwar and so invalidate his declared candidacy before the 11th March, date of registration for the by-election. The trial was politics in motion, and not a campaign to uphold morality by out of date colonial legislation.
The issue of reasonable doubt adapts badly to the emotive charge of sodomy. Courts in democratic countries have long abandoned legislation against sodomy which was notoriously the cause of blackmail, and the legislation regarding homosexuality was referred to as the blackmailer's charter. This may well be the case in countries where such legislation is still active. But sodomy has also been a tool of political chicanery, it is a charge unused in ordinary circumstances and cases involving sodomy are most rare.
The length and complexity of the court proceeding on this case, and the persistence of unanswered questions is proof that there are indeed reasonable doubts of guilt.
Malaysia must grow democratically to meet the challenge of modern governance. The impatience of the population is palpable, as is support for Anwar Ibrahim who despite election lying and cheating already heads an opposition enjoying a 53% popular vote. It is predictable that public reaction to this trial will be shown clearly in the coming by-election.
Danthong Breen,
Union for Civil Liberty, Bangkok
[2] See the recent resurgence of the criminalization of homosexuality in Nigeria, Uganda.
[3] Charade of Justice, Anwar's Third Trial, Chapter 8, Pawancheek Maraican, Gerakbudaya Enterprise, Petaling Jaya, 2012.Sodomy II, Chapter 7, Mark Trowell, Mashall Cavendish, Singapore, 2012
[4] New Straits Times, 7th March 2014, remark of Datuk Balia Yusof Wahi, spokesperson of three member bench
[5] There is a famous story in the Sherlock Holmes series of tales "The dog that did not bark" where the famous detective solves a crime by alluding to the mystery of a watchdog which did not bark, implying that the owner of the dog was guilty of the crime. In the Anwar case there is a mystery of the sample deterioration which did not take place, casting doubt on the related history of the samples.
