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Nov 9 at 8:30 AM
Anwar’s final appeal: will Federal
Court shine?
By Kim Quek
09.11.2014
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.
DNA
EVIDENCE THOROUGHLY FLAWED
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.
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.
COMPLAINANT’S
CREDIBILITY IMPAIRED
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.
WILL
FEDERAL COURT DELIVER JUSTICE?
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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