Saturday, November 8, 2014

Celestial Journeys by Anwar will the Federal Court Judges Step in rhythm to their inner heart

Few would doubt that the outcome of the final appeal of Anwar Ibrahim against his sodomy conviction will be decided by politics, not by law.More specifically, the court’s verdict will likely be determined by Umno’s political considerations on the impact of such final judgment.
The sodomy 20 years ago. An entire generation has come up since, barely aware of history. Its lessons for UMNO must never be forgotten.
 How many Malaysians have the courage of YB DSAI who is prepared,once again,to be imprisoned and martyred if necessary,on a scandalous Second Sodomy charge,with the intention of breaking-up Pakatan Rakyat.The repercussion by Malaysian voters on UMNO Baru in general and Barisan Nasional parties in particular,will certainly be felt come the 14th General Election.
The judges may need one to two weeks to write the judgment and he expects it to be a full written judgment, said government-appointed prosecutor Muhammad Shafee Abdullah.
First how did he know the judges will take that long for the judgment? After all, he is not one of the deciding judges. Has he some privileged information?
Why it is so different compared to the previous Court of Appeal hearing, before the ‘Kajang Move’ by-election nomination, when the appellate court reversed the ‘not guilty’ High Court judgment in a matter of two days, working overtime, to sentence Opposition Leader Anwar Ibrahim to five years’ jail?
The perception of the public is that this is not a typical criminal trial but a political one. Now the political dilemma starts, as in William Shakespeare’s ‘Hamlet’. “To be, or not to be...” - to put Anwar in jail or free him? Both equally have grave consequences.
If Anwar goes to jail, the BN government may be troubled or weakened by expected many reformasi demonstrations. The opposing faction in Umno, the pro-Mahathir Mohamad, may seize this opportunity to further pressure its president to step down.
If Anwar is free, he lives another day to fight for Pakatan Rakyat. So what? The government still has a hold on him - he has another criminal case to answer under the sedition charge.
The answer, my friends, is who has more to lose? Anwar or Najib?
 Indeed, before the judges could make a decision, chief prosecutor Shafee had already assumed that it would take one to two weeks to write the judgment, and secondly his plan to submit for an enhancement of the sentence.
He sounds so vindictive and hopefully the judges would take note of this.
 Shafee claims that the five-year sentence for Anwar is "manifestly inadequate". How is it manifestly inadequate?
I have never heard of a single person being charged for sodomy in Malaysia all these years. So is the five years demanded of Anwar to make up for the fact that no one else has been prosecuted for this offence, let alone being sent to prison?
It looks like this is a cross Anwar has to bear for the AG's (attorney-general’s) bias.
Let us not pass judgment on the performance of the judges who had patiently heard submissions from both parties and we can proudly say DSAI’s (Anwar’s) defence team did a marvelous job.
Let’s give time to the judges to write their judgment. We all know Shafee did a monkey dance which would be evaluated by the judges accordingly.
I have never seen a lawyer who is vindictively blood thirsty. Let us pray for a fair and firm judgment based on the evidence put before the judges.
 Beyond a reasonable doubt is the highest standard of proof that must be met in any trial, and very much so when it involves a criminal case.
There are so much doubts and assumptions the prosecution failed to proof and address. Saiful Bukhari Azlan's claim that he was forcefully sodomised and the act was vigorous and fast and he suffered pain.
But medical examination does not show even a microtrauma to his anal passage which serves as an indicator for penetration. Based on this basis, the defendent should be acquitted.
The world's legal fraternity is observing this case closely and any misjudgement would be extremely shameful to our country's legal system.
The sad thing about this episode is the Malaysian populace putting up with a government bent on persecuting its political opponents using filthy tactics. Sadder still is young Malaysians getting a daily dose of this rotten and toxic stuff.
Anwar may or may not be guilty of apparent consensual sex but why is it the public's business? Where is the country heading?
"They have only tried to create doubt that sample taken from the cell is not 'Male Y',” said Shafee.
Isn't creating doubt is what lawyers do in criminal cases? Defence lawyer Gopal Sri Ram has punched many holes in the prosecution case. Shafee's job is to prove his points beyond an iota of doubt, plugging all the holes and make them water tight. He has miserably failed to do that.
To be fair to Anwar, the whole case should have been heard by the Syariah Court since Anwar and Saiful are Muslims. Then we can see how they are going to prove penetration.
In spite of all these good arguments, I won't be surprised if Anwar is convicted. This is Malaysian politics.
Four of the five judges on the panel have been criticised by law experts for their previous ridiculous and questionable judgements against Pakatan Rakyat and Anwar, and thus have established their ‘kangaroo credentials’.
They could have become ‘kangaroos’ out of fear if they or their close family members had made themselves vulnerable to prosecution due to some wrongdoing or if they may have been promised some material rewards by PM Najib.
If it is a ‘guilty’ verdict then they will think of some ridiculous reasons to justify that verdict as they have done in the past. If it is the correct ‘not guilty verdict’ then it could mean that Najib has a different plan to get rid of Anwar.
 Shafee also denied that the charge imposed on Anwar was politically motivated as in the past the prosecution had imposed charges on former Selangor MB Harun Idris, and also ex-youth and sports minister Mokhtar Hashim.”
Does that mean or prove that the charges imposed on the two Umno politicians were not politically motivated? -

The defence had already strongly established that such DNA evidence was flawed at the High Court and, again, at the Court of Appeal. And now, it had further strengthened its case by highlighting and emphasising the main flaws.
Central to the DNA issue is the irrefutable evidence of sample tampering, compounded by the highly implausible finding of pristine samples and the unexplained presence of third party DNA.
The historical 8-day hearing of the final appeal of Anwar Ibrahim at the Federal Court against his sodomy conviction has unexpectedly brightened the prospect of an acquittal.
In contrast with the Court of Appeal which rushed through the entire process of hearing, deliberation, judgment and sentencing (of the 5-year jail term), all in two days, apparently to fulfil a political target, the current court allowed full opportunity to both prosecution and defence to air all their arguments, stretching the hearing to a record 8 days.
During these lengthy submissions, an even clearer picture has emerged that this is decidedly a case heavily tilted in favour of the defence.
This is a case of one man’s words against another’s, with no eyewitnesses. So, corroborative evidence becomes vital.
And the only important corroborative evidence of the prosecution is the DNA evidence.

Investigating officer Jude Pereira had broken the only tamper-proof seal without justification, and he further kept the DNA samples for 42 hours in his steel cabinet against regulations, thus fatally damaging the integrity of the chain of custody of these samples, as well as exposing them to inevitable contamination.
Despite a lapse of 56 hours before the samples were extracted from complainant Saiful Bukhari Azlan’s rectum and another 42 hours in non-freezing condition before reaching the chemist, the latter’s DNA analysis report miraculously indicated no degradation in the samples. Such highly implausible phenomenon strongly indicates that the samples analysed by the chemist were not the same as those retrieved from Saiful.
Further, there was the presence of third party DNA in the samples, which the government chemists had hidden in their reports, but was uncovered by defence’s expert witness. The prosecution has given no credible explanation to the presence of such third party DNA.
Worsening the crisis of confidence in the integrity of these DNA findings is defence’s latest revelation that Pereira had in fact been found to be an unreliable witness by none other than lead prosecutor Shafee Abdullah himself in an earlier human rights hearing conducted by Suhakam and chaired by Shafee.
To these damaging submissions by the defence, the prosecution has given no credible rebuttal.
So, what we have is an unreliable investigation officer who had tampered with the samples before delivering the same to the chemist, which samples were later found to be in conditions that were totally incompatible with their history.
Can such a doubt-ridden DNA test report be relied upon as the principal corroborative evidence to convict an accused in any court of law where there is no direct evidence?
The answer is an emphatic no.
In an attempt to lend credibility to the story of sodomy, lead prosecutor Shafee went at length to suggest a long-standing intimate relationship between Saiful and Anwar, claiming the latter had given the former a very expensive Brioni suit and generous allowances. But significantly, the scenario constructed by Shafee was completely inferred from the words uttered by Saiful in his narration of the alleged incident – there was no supporting evidence other than Saiful’s words.
The question is: are Saiful’s words good enough for conviction?
Despite Shafee’s claim of Saiful being a completely truthful witness, evidences highlighted by the defence indicate otherwise.
Saiful claimed that he was given the Brioni suit by Anwar, but the suit produced in court showed no label. Is it credible that the very high-end Brioni product carries no label?
Saiful said he was sodomised in condo unit 1-11-5, on a carpet. But the police had seized the carpet from unit 2-11-5; there was no carpet in unit 1-2-11-5, and there is no connecting door between the two units.
Saiful said that in the alleged sodomy act, he applied K-Y jelly, which had spilled over the carpet. But police investigation had found neither evidence of jelly nor any other forensic evidence on the carpet.
Saiful said he had always idolised Anwar, but evidence indicated that he was in fact pro-Barisan Nasional and anti-Anwar from his posting in the Friendster account, and his pal Najwan Haliman had testified that Saiful was not to be trusted.
Saiful attributed his long delay to seek medical examination and make police report to his fear for his safety, but such claim flies in the face of the fact that two days before the alleged incident, he met with then Deputy Prime Minister Najib Razak at his residence, had a secret meeting with senior police officer Rodwan Yusof who featured prominently in the fabrication of DNA evidence against Anwar in his 1999 sodomy trial, and had a telephone conversation with then Inspector General of Police Musa Hassan.
Did such high-level liaison tally up with Saiful’s claim of being a timid victim of sodomy, frightened to make a report to the authorities? Wasm’t it obvious that there was much more to Saiful’s long delay to make a report than his claim of fear?
Shafee’s portrayal of Saiful as an innocent and helpless victim also could not be borne out by the latter’s affair with a female member of the prosecution team Farah Azlina Latif during the trial, from whom Saiful had presumably extracted unauthorised information. Farah was later removed from the team due to this scandal, but neither the High Court nor the Court of Appeal had taken note of the negative impact the defence had submitted over this incident.
With so many yawning gaps between evidence and fact in Saiful’s testimony and in prosecutor’s characterisation of him, it is clear that Saiful is no innocent victim as made out to be, and that his words certainly cannot be accepted as truthful evidence without corroboration. And lead prosecutor Shafee’s construction of a weak employee sexually harassed by an oppressive employer, based completely on Saiful’s words, is certainly unacceptable.
Then how can any court convict the accused based on the words of an unreliable complainant, whose only corroborative evidence (the sodomy tests) has proven to be thoroughly flawed?
Indeed, this trial should not even have started, when all the four doctors (in two hospitals) have unanimously found no physical evidence of penetration. It is a marvel in modern times that such a farcical trial has stretched for six long years, much to the pain of Anwar, his family, and the nation.
Looking back at the many unjust twists and turns that Anwar has suffered in the past six years, the Malaysian law-enforcement authorities and the judiciary have certainly done injustice to Anwar.
At this finality of the trial, without high expectations, the public was hence pleasantly surprised and heartened when the current court showed meticulous attention to details submitted by both sides and allowed full laxity of time for presentation of facts and law, which is in complete contrast to the earlier hearing by the Court of Appeal which had rushed to a verdict in unreasonable time apparently to meet a political dateline.
The public now has high expectations that the panel of five judges headed by Chief Justice Arifin Zakaria, and comprising Justices Raus Sharif, Hamid Embong, Suriyadi Halim Omar and Ramly Ali will give full consideration to the submissions from both protagonists and make their judgments conscientiously in accordance with law, without fear or favour, and free of political influence.
Kim Quek

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