- What next in Anwar sodomy II?
- Sulaiman to be lead counsel for Anwar
- Sex claim shows desperation of Malaysia’s rulers, says top opponent
Posted: 22 Apr 2014 05:49 AM PDT
Despite 85 pages of rhetoric, the Court of Appeal's written judgment (the "Judgment") convicting Datuk Seri Anwar Ibrahim of sodomy has failed to establish the only corroborative evidence of the charge – the DNA evidence.
This is a case of one man's word against another, with no eyewitness to the incident.
Without establishing the DNA evidence beyond reasonable doubt, the Court of Appeal has no business to overturn the High Court judgment acquitting Anwar on ground of doubtful integrity of the DNA samples.
The crucial question to ask is: have the samples become vulnerable to tampering after the sealed plastic bag containing individual receptacles holding the samples was cut open by the investigating officer without authority and kept for prolong duration before delivering them to the chemist?
The prosecutor said no, reason being that the individual receptacles were also sealed, hence, the samples were protected.
Sample tampering irrefutable
But the catch is: while the plastic bag which was heat sealed was tamper-proof, the seals to the individual receptacles were not tamper-proof.
Australian forensic pathologist Dr David Wells testified that the seals to the receptacles could be removed and resealed based on the materials used and the manner of sealing, after he had examined them.
Appeal Court judges of Datuk Balia Yusof Wahi, Datuk and Datuk Mohd Zawawi Salleh, who took the highly unusual step of appending their signatures to one single written document, dismissed Dr Wells' claim by saying "he merely looked at the containers in court and gave his opinion solely from the manner in which these containers were sealed and the type of material used as seals. That was merely his opinion pure and simple". (para 121 of the Judgment)
It was, of course, Dr Wells' opinion. What else could he do other than expressing an opinion? If the seals were not readily removable, why didn't the prosecution refute his claim? As a matter of fact, according to Anwar, who saw the receptacles in coAziah Aliurt, these seals consisted of only "ordinary and easily removable tapes and easily removable KL Hospital paper seals" as stated in his statement in dock.
Is that the reason Dr Wells' testimony was not challenged in court? Would he have been let off the hook if in fact the claim was false, knowing the critical importance of the issue?
And why did Jude Pereira take the reckless step of cutting open the permanently sealed plastic bag? He said he wanted to put the receptacles into individual envelopes and re-label them. But that explanation was obviously phoney as rightly pointed out by High Court judge Datuk Mohamad Zabidin Mohd Diah for the simple reason that each of the receptacles had already been clearly labelled by the hospital doctors and Pereira's mission was merely to deliver them to the chemist withoMohamad Zabidin Mohd Diahut any input of his own.
Shockingly, despite the opening of the plastic bag had opened the gateway for meddling with the samples in the unsecured receptacles, the judges declared such unauthorised action as not amounting to tampering with the samples, even repeating Pereira's incredible claim that he was merely following standard operation procedure (para 85).
Talking about SOP, is it also SOP to place the samples in Pereira's personal steel cabinet for 42 hours instead of the police freezer, which was a beach of police standard practice, as well as defiance of KL Hospital forensic pathologist Dr Siew Sheue Fong's strict instruction that the samples be kept in freezer?
Why have the judges completely omitted to mention the defence claim that such prolong storage under room temperature would have damaged further the already much degraded samples?
Being a senior police officer familiar with forensic investigation, Pereira must have known that his reckless beach of discipline in his mishandling of the samples could fatally damage the integrity of the chain of custody as well as the quality of the DNA samples, both of which are of vital importance to the prosecution case.
Then why did he still do it? What was it so compelling that he had to take such risks? Why did he keep the samples to himself for 42 hours? If he was not up to something sinister, what was he up to?
Dubious DNA samples
Could that explain the miraculous phenomenon that the these samples were later found to have suffered no degradation at all, despite being retrieved 56 hours after alleged sodomy and stored for another 42 hours under room temperature, something unheard of?
The two Australian experts held the view from their long careers that semen collected 36 hours after ejaculation could hardly be successfully tested for the sperm's DNA due to degradation.
DNA expert Dr Brian McDonald testified from his observation of test reports handed to him that the profiles of DNA tests for various samples taken from the rectum including those showing DNA of Male Y (which prosecution claims to be those of Anwar) showed no evidence of degradation.
This contradicted with the samples' history, inferring that they might not be the same samples that were retrieved from complainant Mohd Saiful Bukhari Azlan's rectum by the hospital doctors 98 hours earlier.
In addition to such contradictions which cast serious doubt over the credibility of the DNA findings, the two Australian experts also pointed out many discrepancies, deficiencies and flaws of the chemist's DNA reports and hospital doctors' examination reports, including the exposure of the puzzling presence of DNA of multiple people extracted from Saiful's rectum, which the chemist have overlooked, compounding the crisis of confidence in these reports.
These are, of course, serious challenges to the prosecution case, which stands or falls on the DNA evidence.
Slamming of experts childish
But instead of taking these Australian experts' opinion head on with equally professional counter argument, the judges seem to have found a short cut by resorting to name-calling to devalue the Australians' testimonies while simultaneously enhancing the status of statements made the government's professionals.
Thus, the Australians have become "armchair experts" who have no practical experience (false, of course) to lend credibility to their argument, while the government chemists have "impeccable credentials" with competence in both the academic and practical fields.
The judges even went to the extent of concurring with lead prosecutor Tan Sri Muhammad Shafee Abdullah's submission that the Australians' evidence were "speculative and theoretical if not hypothetical, thus lacking in probative value" (para 142).
In contrast, the evidence of the two local chemists was described as factual and based on their own analysis of samples.
Then, using the premise of "lacking in probative value", the judges in one sweeping stroke, rejected the Australians' critical testimonies on all the critical issues, which are sample tampering, doubtful DNA reports and penile penetration (para 150).
Presto! Problem solved! The Australians' unfavourable testimonies are set aside in favour of the affirmative ones submitted by government professionals. The prosecution case is thus saved.
But what is the truth?
Dr Wells, a forensic pathologist, specialises in sexual assault cases. He is head of Clinical Forensic Medicine at the Victorian Institute of Forensic Medicine, Associate Professor in the Department of Forensic Medicine at Monash Unviersity, Member of the Advisory Panel – National Institute of Forensic Science, Member of the International Editorial Board of the Journal of Clinical Forensic Medicine.
He has worked with World Health Organisation in establishing medico-legal services for victims of sexual violence in developing countries. He has written several books and articles on sexual violence and awarded the Order of Australia Medal. He has testified in all levels of courts where his testimonies have been accepted.
Dr Bian McDonald, holding a PhD in pathology, is a consultant molecular geneticist. He is a member of the Australian Forensic Science Society, member of the Australian Biomedical Society and served as committee member of the Human Genetics Society, a director of both DNA Consults and Molecular Genetics for the Sonic Clinical Institute. He was also a head geneticist officer in New South Wales. He has written books, papers and articles on the subject of DNA, a list of which fills up five pages.
Clearly, the above credentials speak for themselves, and show how utterly irresponsible is the act of rejecting those expert opinions en bloc with the cavalier and childish comment on those evidence being "mere opinion, speculative and theoretical", which actually reflects the shallowness of the writer of the Judgment, whoever he is.
On the subject of anal penile penetration, this is another major flaw of the prosecution case. All the four doctors who had examined Saiful had reported no sign of penetration, which contradicted the latter's testimony that the "fast and furious" act had caused him pain.
Though the three government doctors later changed their tune, however, their revised views were based on the subsequent report issued by the chemist, who claimed the presence of semen of "Male Y" in Saiful's rectum.
Such revised view had, of course, zero value, as the doctors' report must be based on their own observations and not on subsequent reports issued by others.
Anwar's statement in the dock
Was Anwar a coward, scared of being cross-examined in the witness stand as insinuated by the judges, when he chose to give an unsworn statement in dock as his defence?
Anyone who has read his 9,000-word statement which took him an hour and 20 minutes to deliver in court, could not have failed to be moved by the endless series of injustice he has suffered and his cries of despair that he would ever receive justice in the court.
The long litany of unjust treatment he had received at every step of his judicial defence as enumerated by him has proved beyond the slightest doubt that this is political persecution, not a criminal trial, where the verdict is a foregone conclusion.
There is no better testimony to that than the shock with which the world greeted the acquittal of Anwar at the High Court three years ago, as the proceedings of the trial had been so manifestly unfair and vindictive that no one expected an acquittal.
That the prosecutor and the judges did not let go the slightest opportunity to build up the perception of guilt against Anwar is seen in its dishonest inference that Anwar didn't call alibi witnesses because they couldn't have substantiated his story of innocence.
This is double injustice to Anwar, because it was the powers that be that had put a spoke to his alibi defence. Anwar said in his statement in dock: "My alibi witnesses made known to the prosecution were in fact included in the prosecution list of witnesses, which was not supplied to my lawyers. They were defence alibi witnesses. I am informed this is the first time this has been done."
Anwar also gave the example of the owner of the condo where the alleged incidence took place, Hasanuddin Abd Hamid, who was harassed by the police for a total of 30 hours where his statements were video recorded. Another alibi witness, Fitria Dipan the maid, ironically offered by the prosecution, couldn't even be traced.
Prosecution + defence v defence
A trial judge is supposed to be an umpire, taking a neutral position to weigh without prejudice the merits and demerits of facts and legal arguments presented by the prosecutor and the defence and deliver his decision at the end of the hearing strictly according to facts and relevant law, without fear or favour.
But this is distinctively not the case in the present trial. Reading through the Judgment, one can't help but get the impression that there is an invisible dividing line separating the prosecutor and judges on one side and the defence on the other. With due respect, it looks like a joint effort to fix the respondent, and let the facts and law be damned.
In fact, the outcome of this trial was already self-evident when Anwar's request to replace specially invited lead prosecutor Shafee was rejected all the way to the highest court. Being an Umno lawyer and Prime Minister Datuk Seri Najib Razak's confidante, Shafee's role as prosecutor was to part of a political agenda.
Now that Anwar has appealed to the Federal Court, the nation will hold its breath at what will happen next.
Will it be another saving grace for the judiciary, or will it be another plunge that will trigger off a new phase of bruising conflict that will cause much suffering, but with the prospect of opening up a new era for the nation?
Posted: 22 Apr 2014 05:47 AM PDT
Former Malaysian Bar president Sulaiman Abdullah is slated to replace the late Karpal Singh as Anwar Ibrahim’s lead counsel in the Sodomy II appeal in the Federal Court.
A source familiar with the case confirmed today that Sulaiman has agreed to act for Anwar.
“Ramkarpal, who played a pivotal role during the Sodomy II trial and in the appeal before the Court of Appeal, will also be part of the team,” the source revealed.
Sulaiman, who had played an initial role in the Sodomy II appeal before Karpal’s team took over, had a main role in the Sodomy I trial.
Karpal, 73, died in a car crash on April 17, that also killed his assistant J Michael Cornelius.
Anwar was found guilty by the Court of Appeal on March 7 and sentenced to five years jail for Sodomy II.
The written judgment was made available last Wednesday to Karpal’s firm. Appellants have 10 days to file the petition stating their grounds of appeal.
Extension of time
A source said Anwar’s legal team will seek an extension to file the petition of appeal which is due by Friday.
“Ramkarpal is scheduled to file an extension for the petition of appeal either today or tomorrow,” the source said.
“We are also preparing for any eventuality if this is not allowed and will make arrangements to file it on Friday.”
Anwar was acquitted by the Kuala Lumpur High Court on Jan 9, 2012, but the prosecution appealed the decision.
The final appeal will be decided at the Federal Court.
Posted: 21 Apr 2014 08:54 PM PDT
The last time Anwar Ibrahim, Malaysia’s opposition leader, was sent to prison, he read the complete works of Shakespeare, (five times), wrote essays and treatises, gave interviews and strategised about how best to lead the opposition party to victory against the ruling party, which has governed this south-east Asian nation for nearly 60 years.
Ten years later, he once again faces imprisonment on sodomy charges, which he claims are politically motivated.
His case has gripped Malaysia in its range from the absurd to the bizarre. Charged in 2008 with sodomising a former male aide, Anwar was cleared in 2012 on lack of evidence. But an appeals court overturned the acquittal last month on the eve of a byelection in Malaysia’s richest state, Selangor, where he was tipped to become chief minister.
Not only did the conviction rely on a witness of doubtful testimony, the appeal was led by the government and the lead prosecutor suddenly did an about-face and switched to Anwar’s defence team.
“It’s a sign of desperation on the part of the government,” said Anwar of his conviction, in an interview in London, where he is visiting his friend and former American vice-president Al Gore, after being granted a stay of sentence. “They think because the (next general) elections are four years away they can literally get away with murder.”
Anwar, 66, is Malaysia’s longest-suffering political opponent and greatest threat to the incumbent Umno government, led by the prime minister Najib Razak, whose Barisan Nasional (National Front) alliance has ruled the country since independence.
Anwar is a polarising figure in a conservative nation of 30 million, where his political career has spanned formidable highs and lows: once serving as the deputy prime minister and finance minister, he was courted by international media and graced the cover of Newsweek, then fell out spectacularly with the premier Mahathir Mohamad.
Anwar has long contended that all the charges against him were politically motivated, with the sodomy convictions based on an archaic colonial law rendering sex between men a punishable offence, even if consensual. Very few sodomy cases ever make it to court and Anwar and his supporters believe his charges to be a political ploy to keep him out of politics in a conservative nation built on family values. He first spent six years in prison, mostly in solitary confinement, until his release in 2004.
This second sodomy charge followed a stellar performance by Anwar’s three-party opposition coalition in the 2008 general elections, at which the opposition made huge gains against the Barisan Nasional – and was overturned in 2012 by Malaysia’s high court.
Analysts believe there was “no coincidence” regarding the overturning of that acquittal last month, with human rights groups, the US state department and UN all questioning the legality of the court decision.
“This trial was all about knocking Anwar Ibrahim out of politics, pure and simple,” said Phil Robertson, of Human Rights Watch. “The Malaysia judiciary … has shown how hard it is to get a free and fair trial when political issues are at play.”
Yet it is not just Anwar the government seems to be targeting, say civil rights groups, who point to the arrest and conviction of other prominent opposition MPs, such as Karpal Singh, who was convicted of sedition, under another ill-used colonial-era law, as a means to thwart an opposition that has had big gains in the last two general elections, as well as in the byelections last month.
“What’s alarming is the extent to which this government, which is supposed to have won the election, is going to undermine the opposition,” said Ambiga Sreenevasan, a lawyer and former chair of Bersih, the Coalition for Free and Fair Elections. “This is really without a doubt a clear-cut case of selective – I’m going to call it persecution – not prosecution.”
Anwar’s conviction could once again be overturned, pending a federal court hearing expected within the next month. But in a nation where the definition of justice depends on “what the government of the day feels like doing”, said Ambiga, it was unclear just how far Malaysia would go to silence its opposition.
As for Anwar, who could well choose to never return to Malaysia, life in his home country, whether behind bars or atop rally stages, seems the only option for fighting for a democracy that he says will one day prevail.
“There is no benefit to going back to Malaysia,” he said. “(But) I decided a long time ago that I wanted to go back because it is my conviction, it is my firm belief, that Malaysia has to mature as a vibrant democracy that has no corruption, abuse of power or leadership that has been squandering billions of dollars.
“It’s tough when you consider my wife and children suffer, but they know, and I discussed it with them, they support me even though they are not happy for me to endure this again. But we have to weather the storm. I am always optimistic.”
A mass rally backing Anwar is planned for 1 May in Kuala Lumpur, where other rallies in support of Bersih, calling for clean and fair elections, have attracted hundreds of thousands of Malaysians to take to the streets in recent years.
“Tyrants, authoritarian leaders, are not permanent features. They are racing against time. Over the temporary setbacks, the clamour for reform or democracy is irreversible,” Anwar said.
Published in The Guardian UK, 20 April 2014
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