Bruce Tan
KUALA LUMPUR, Feb 2: The month of February 2010 will bring the Lunar New Year with its colourful red ‘ang pows’ and the din of fire crackers to remind us that yet another tumultuous year has gone by. It will also witness the beginning of the long awaited court battle where Anwar will defend himself against a charge of consensual sodomy with his ex-aide.


It is a battle which Anwar will not fight alone. Millions will follow the courtroom battle blow by blow. It is not just Anwar who is on trial but also the judiciary, the law enforcement bodies and even the reputation of Prime Minister Najib Razak himself. As Anwar is also Malaysia's Opposition Leader, it is not just one man’s battle for honour and liberty but a battle in microcosm for the political future of the nation.

A conviction for Anwar may end his political career for good but only if Barisan Nasional wins the next general election. Should Pakatan Rakyat grab the seat of power there are ways to revive his political career starting with a judicial review to right any miscarriage of justice.

If charges are dismissed the Malaysian judiciary will receive a badly needed boost to its dented reputation and Najib may even score some brownie points for not interfering although the government will get a black eye. But if Anwar is convicted in the trial, which is already widely perceived as a parody of justice, a powerful shockwave will be generated which will dim the BN’s chances of fending off an assault by PR at the polls.

Make no mistake about this. It is not a matter of convincing the judge but convincing the public. To some dense Umno warlords, a speedy trial by a friendly judge and then off-to-prison-you-go is just the panacea that BN needs to demolish PR and guarantee its political hegemony. But this is more like a foolish man unable to see that he is sitting on a branch he is also sawing off.

Public perception
What is the public perception of this latest sodomy case? The events leading to Anwar being charged and the intense courtroom battles leading to the trial proper do not inspire much confidence that everything is aboveboard.

The accuser, Saiful did not behave like a rape victim who has been traumatized and humiliated by the alleged act. Public revelations that he had met Najib and a police officer in a Shah Alam hotel before making his police report and photographs of him with top Umno leaders did not bolster his case.

To top it off, Anwar is charged with consensual sodomy although his accuser had publicly declared that he was forced against his will and sworn in a mosque no less. Why is Anwar charged for consensual sodomy when the government has shown absolutely no interest in enforcing this archaic law against practicing gays?

The existence of two independent medical reports testifying that the alleged victim had never been penetrated should have scuttled the case completely but not this one.

The frenzied legal maneuverings by the prosecutors so far do not convince doubters either. Anwar was first charged in the Magistrate Court which is qualified to hear his case as it does not involve the death penalty. However the prosecutors fought tooth and nail to transfer the case to the High Court as if their whole case depends on it.

If the prosecution has strong evidence Anwar could be convicted in any court under any judge, then such intense effort to transfer his case without any creditable reason would not be necessary.

Furthermore the huge battle not to hand over witness testimonies to the defendant as required by the Criminal Procedure Code smacks of a prosecution which has no confidence in the strength of their own evidence and so must conduct a trial by ambush.

Beware of the truth

Lawyers know how hard it is to prove a case of genuine rape as such acts are usually committed unseen and unheard by witnesses but what are the chances of proving a case which never happened?

The effort to stage manage fabricated evidence in court would be tremendous. Witnesses have to be coached, their testimonies must tally and dovetail together, plausible explanations must be created for seemingly contradictory events and witnesses must remember what to say and what they have said. To make it even more challenging the whole contraption must stand up in court under the aggressive cross-examination of lawyers. But no matter how well planned, an unexpected revelation may throw a spanner into the works and bring the whole edifice tumbling down.

Truth has a way of coming out like water dribbling from a leaky container. Plug one hole and water finds another way out. Plug that and more holes appear.

What happened in Anwar’s sodomy trial 11 years ago should give any conspirators pause. The date of the offence was originally fixed as one night in May 1994. When his accuser Azizan testified that he had not been sodomized after 1993, the charge was changed to one night in May 1992. When the prosecution pointed out that Tivoli Villa, the place of the alleged offence had not been constructed yet in 1992, the charge was changed to one night between January and March 1993. When the defendant produced invoices to show that the apartment was under renovation at the material time the judge refused to accept it.

Do the witnesses have the mental toughness to maintain the charade under intense cross-examination? In the previous sodomy case, Azizan could not. He was asked three times and he replied three times that he had not been sodomized. It was only the judge who saved the prosecution’s case.

The 1999 sodomy trial was widely regarded as a sham. The prosecution in Sodomy II must do better, much better than this to convince a skeptical public.

Consensual or Not?

Anwar is charged under Section 377B of the penal code for voluntarily committing carnal intercourse against the order of nature. This is distinct from Section 377C where someone commits carnal intercourse against the order of nature on another person without the consent or against the will of the other person.

Section 377A defines carnal intercourse against the order of nature. A quirk in the description means that only the person who does the penetration is liable for prosecution. But if the act was consensual shouldn’t Saiful be charged for indecent behavior as well?

However there is a contradiction between the charge and the public stance of the star witness who has publicly insisted that the sodomy was against his will. When the trial begins the first order of business is to ask Saiful to declare whether the sodomy was consensual or not.

If Saiful still maintains that the act was against his will the charge must be amended to Section 377C or it is defective and must be thrown out. There is a whole world of difference between a consensual act and a forced act and we cannot have a man tried for consensual sodomy while the alleged partner insists that he was forced. This is against logic and natural justice.

Of course forced sodomy is more difficult to prove especially when the alleged perpetrator is a 62-year old man with a bad back and the alleged victim is a strapping youth bigger and stronger than him but that is the prosecution’s problem. The prosecution cannot give themselves an easier job by preferring a charge which does not reflect the reality on the ground.

If Saiful changes his tune to admit to consensual sodomy, the trial can proceed but a political time bomb may be triggered. This is because he had sworn in a mosque in front of the press and TV cameras that the act was against his will, with BN making political capital out of it at the Permatang Pauh by-election. This admission will be politically devastating for BN in the staunchly religious Malay heartlands but you reap what you sow.

DNA evidence

From what transpired during the Anwar’s battle to procure evidence from the prosecution it appears that the main evidence against Anwar will be DNA evidence.

In other countries DNA evidence is treated as supplementary or supporting evidence. It cannot stand by itself and is always used to support other evidence gathered. If DNA evidence shows that the defendant was at the crime scene but witnesses can testify that he was elsewhere, then the DNA evidence must be disregarded. This recognizes the fact that DNA tests are not infallible to mistakes and contamination.

Another important point is independent verification. Part of the original DNA sample must be made available to the defendant to enable him to engage his own specialists to verify the result or it becomes the word of the tester against his. However in Anwar’s case the prosecution has pointedly refused to hand over any DNA sample to him.

In the earlier sodomy case, chemist Lim Kong Boon testified that the stains on a mattress contained Anwar’s DNA mixed with several women. However in a brilliant cross-examination, his methodology and expertise were demolished and he was forced to admit that Anwar’s DNA could have been planted. The judge expunged the whole DNA evidence.

During Teoh Beng Hock’s inquest, government pathologists admitted that their samples were contaminated by an accident victim giving rise to doubts about their competence and methodology.

As there is a lag of 2 days between the alleged act and the police report made by Saiful and possibly longer to the medical examination, any notion that usable DNA evidence can be extracted from his rectum is stretching the imagination as such evidence would be destroyed on his first visit to the toilet for bowel movement.

With the public now leery of any DNA evidence, to use unsupported and unverified DNA evidence to try to convince the public of Anwar’s guilt is worse than useless. Such dubious evidence will only reinforce the suspicion that Anwar was framed.

One hopes that the prosecution has more in their bag to present a watertight case. Malaysians deserve better than the 1999 verdict in which Anwar was convicted on the basis of one man’s testimony whom the judge opined, “had no reason to lie.”

A man fights for his freedom, a nation fights for its future

If Anwar is to be convicted it must be based on strong evidence with no room for reasonable doubt. Justice must be done and be seen to be done. A repeat of the 1999 trial with a judgement which convinced nobody and a punishment grossly out of proportion to the alleged crime will be devastating for Malaysia.

Although things remain calm on the surface, civil society is traumatized by such naked display of power and crude perversion of justice. The trust between the government and the people is broken and the government’s respect and legitimacy bleeds away. Deep undercurrents of discontent are created which must eventually manifest in some ways.

Anwar’s fight to clear his name will be a defining moment for Malaysia. This is not about one man’s fight for justice but an indicator of the path the nation is taking.

As long as our democratic institutions are damaged, no Malaysian is safe from unjust prosecution and well-connected guilty ones can escape justice. It also means that there is no check and balance to prevent or remedy all manner of abuses and wrongdoings such as endemic corruption and plundering of resources.

The nation waits with bated breath as we stand at a crucial fork in the road to nationhood, wondering if we will take the path to a maturing democracy or slide down the slippery slope to a failed state like Zimbabwe and Myanmar.