ANWAR IBRAHIM – SODOMY: THE SEQUEL

It is almost 11 years since Anwar Ibrahim, newly sacked as deputy prime minister, was first slapped with trumped-up charges of sodomy and corruption (abuse of power), and subsequently put through two trials which were condemned around the world as manifestly flawed and politically motivated. He spent six years in detention, in solitary confinement throughout, after his conviction on the first (corruption) charge, but at the final level of appeal against conviction on the charge of committing sodomy, he was acquitted and released on 2 September 2004. The two cases were interrelated, although tried separately: the corruption charge was that he had abused his position to direct the police to halt investigations into his alleged sexual misconduct.

Now the nightmare is starting all over again. On 16 July 2008, Anwar was arrested on a new charge of sodomy, after a report was lodged by a junior aide in his office. Anwar claims that the charge is, again, politically motivated, a renewed attempt to scuttle his political career which has revived dramatically, against all the odds, since his release. Most people both inside and outside the country agree with this assessment.

The new case – its facts and the way it is being conducted by the authorities – looks alarmingly like the earlier ones. These were marked by: political interference; falsification of evidence; blackmailing of prosecution witnesses as well as several of Anwar’s close friends and associates; harassment of defence lawyers and also several civil servants who did not speak, report or act according to “instructions”; the court’s or judge’s rejection of documents, and refusal to allow witness testimony, which was favourable to the accused; and a string of unfair or questionable rulings and decisions by the judges both during the course of the trial and in the ultimate judgment of the cases, which often put a premature end to the defence counsel’s line of questioning.

SOME WORRYING FACTORS IN THE NEW CASE

1. In both cases, the charges came at a time when Anwar was a serious contender to take over the premiership.

2. Just like the 1998 cases, the present case is being pursued despite the glaring absence of solid evidence.

3. The present case, like the earlier one, alleges commission of sodomy, a clear attempt to destroy his reputation as a good Muslim. Even the corruption charge in 1998 was related to sodomy, since it alleged that Anwar abused his position to halt investigations into alleged sexual misconduct. Although he was later acquitted of the charge of committing sodomy, his political enemies, notably ex-PM Dr Mahathir, have kept it alive in the intervening years via insinuating public statements, and Anwar has steadfastly insisted that the charges are fabricated. Very few Malaysians believe the allegations.

4. As a result of the police report against him, Anwar was asked to present himself at the police station for his statement to be recorded, and, through his lawyers, had promised to give full cooperation. Despite being given until 2 pm on the day in question to go himself to the police station, he was arrested at about 1 pm in dramatic style by balaclava-clad members of a special police unit near his house, and then had to spend the night in the police lock-up. Trying to sleep on the bare concrete floor with just a thin blanket to cushion him, Anwar suffered renewed intense pain in his back – his spine was damaged in an assault by the chief of police hours after his arrest in 1998. The overly dramatic style of arrest exactly mirrors the way he was arrested in 1998.

5. The present case arose out of a police report made by a former aide, Mohd Saiful Bukhari Azlan (Saiful). Defence lawyers were for some time denied a copy of the police report despite its central importance to their mounting an effective defence. The unwillingness of the prosecution to supply that police report inevitably invites speculation that its details were still being adjusted (to avoid having to make changes during the trial, as in the earlier case – this would be much more embarrassing as it would be in an open court).

6. This suspicion is supported by the fact that, besides filing the police report, Saiful has also sworn an oath at a mosque and made several press statements. The details of his story have been adapted from one public statement to another. Saiful’s story to date (before the trial even starts) has been marred by inconsistencies and less-than-credible claims, not to mention twists and turns (whom he met, when, whether the alleged act was consensual or he was “raped”).

7. Just one day after he met a senior police officer and reported he had been “raped”, Saiful attended an Anwar Ibrahim Club event at Anwar’s house, at which Anwar was also present, yet he showed no signs of fear or anxiety, neither did he appear to be experiencing any pain in his rectum, as claimed. The subsequent medical examination showed he is not a habitual homosexual, and in any case, if the alleged act was consensual, why was Saiful not charged along with Anwar?

8. The following day, Saiful was examined by a total of four specialist doctors at two different hospitals, after complaining of pain in his rectum. At the first hospital he did not say he had been sodomised until after the examination had been completed, and the doctor then advised him to go for an examination at a government hospital, since that was the required procedure in what would be a criminal case. Despite the second hospital being in close proximity to the first, it took Saiful two and a half hours to get there. At the second hospital, where he reported that he had been sodomised, he was examined by no less than three specialist doctors (who all happened to be instantly available). All four doctors from the two hospitals, in their official reports, stated that there was no sign or mark of any kind that indicated penetration (essential in proving commission of sodomy).

It should be noted that, in the 1998 case, the doctor who examined Sukma (one of the alleged victims), also reported no signs of penetration. This report was, however, suppressed. Similarly, the reports by doctors who examined Anwar after the “black eye” assault, were replaced with one signed by a doctor who never examined Anwar.

9. Puzzlingly, the doctor at the first hospital found no presence of any alien fluid in Saiful’s rectum, but the examination at the second hospital found fluid both inside and outside his rectum. This was on the Saturday, whereas the alleged incident had reportedly taken place two days earlier, on Thursday. Taken together with the long gap between the two examinations, the discovery of fluid only on the second examination looks highly suspicious.

10. The defence team expects the prosecution to place major emphasis on purported DNA evidence. This was also attempted in the first case, but was bungled and had to be jettisoned. The defence lawyers expect them to be better prepared this time, and, significantly, a new DNA Law was rushed through Parliament recently.

Anwar’s DNA was obtained (illegally) by the prosecution for the first case, and since DNA patent does not alter or deteriorate, there is no need to obtain new samples from a person who faces new charges at a later date. However, the obtaining of fresh samples was indeed ordered by former Prime Minister Abdullah Badawi and his son-in-law, Khairy Jamaluddin, before the former left office. This invites speculation that it could be used to plant evidence.

Anwar’s overnight detention in the lock-up on his arrest last year may have been used to discreetly gather new DNA material – a person trying to sleep on a bare concrete floor will toss and turn and in the process shed some hairs from his head. There didn’t seem to be any other compelling reason to detain him overnight.

11. In the earlier case, the prosecution was forced to change the details of the charge when Anwar was able to provide unassailable proof of alibi for the original date of the alleged offence. (It had to be changed yet again when it was found that the building where it had allegedly taken place was under major renovation at the time in question...)

The new case shows signs of following the same pattern. Anwar has proof of alibi for the original date of the alleged one-off incident (as in the police report), and it is suspected that Saiful’s police statement, made after he filed the report, may have mentioned a whole series of incidents.

Anwar’s proof of alibi should have been enough for the case to be abandoned by the prosecutors, but they have perversely ignored it and gone ahead with the prosecution. Anwar’s recent application to have his case dismissed, on this ground, among others, was rejected by the judge, who, in his judgment, hinted that the prosecution would be able to show compelling proof through DNA. The appeal against this decision is still pending.

12. With the trial about to begin (25 January 2010), the defence team is still trying to get the prosecution team to provide them with a whole list of documents, including the list of prosecution witnesses, Saiful’s police statement (made after the police report), and the case notes for the two hospital medical reports on Saiful – all of these will contain vital details which will show the basis on which the charges have been built. The persistent denial of such key documents is obviously a serious hindrance to the defence team’s preparations.

The defence’s appeal against the dismissal of their earlier application to obtain these documents will only be heard on 20 January. Even supposing that the judge orders the documents to be supplied to the defence, and that they are supplied immediately, the defence will only have four days to go through them.

An affidavit filed by one of the present prosecution team (30 June 2009) claims that there was “no evidence favourable to the accused”.

The earlier case was also marked by many instances of the defence being denied important documents. The judge in that case also refused to hear testimony from several important defence witnesses.

13. Ominously, some of the same officials who masterminded the prosecution strategy in the 1998-99 cases are set to reprise their roles in the new case. This also perhaps goes some way towards explaining the similarities in strategy for the two cases. The two main players are Gani Patail and Musa Hassan, but in fact all members of the prosecution team were involved in some way in the earlier case. Some of them played only a supporting role, but they knew of, and kept silent about, the illegitimate acts perpetrated by the others. Anwar applied to have the entire prosecution team disqualified from hearing his case, but in a decision passed down on 1 December 2009, this application was dismissed.

Gani Patail, formerly the senior prosecutor, has now been elevated to the post of Attorney General. He was involved (it was alleged in an affidavit filed by Anwar on 1 July 2007, which has never been challenged) in falsifying evidence and using blackmail to obtain “confessions” to implicate Anwar for the 1998 case.

In February last year Anwar made a police report against Gani Patail and two senior police officers, including Musa Hassan, alleging the above offence. When Anwar was formally charged later the same year, he demanded that Gani be barred from having any role in this new case, due to his questionable role in the last one, as well as the fact that the police report would prejudice him against Anwar. The Prime Minister at that time, Abdullah Badawi, gave an undertaking, clearly reported in the press, that Gani would not be involved. No action has apparently been taken by the police on Anwar’s report; he has not been called to have his statement recorded.

When the new case first began to be heard in the Sessions Court, and the judge almost immediately proved to be too independent, the prosecution applied to have the case transferred to the High Court. The defence argued strenuously against this, and the prosecution resorted to producing a transfer certificate (a directive which could not be argued against in court) which had been signed by the Attorney General, Gani Patail. The judge concurred with the defence objection to his involvement, but she was quickly replaced by another judge, who ruled that a Prime Minister’s promise has no standing in a court of law, being purely “political”. However, while rejecting the application, the judge observed that, “Based on the past record and event, the accused and the PP have had a bad relation[ship] and unresolved matters which require further investigation. There exists a reasonable perception that the PP has ‘an axe to grind’ against the accused”.

After Anwar filed the police report about Gani Patail and Musa Hassan’s roles in falsifying a police report concerning his (Anwar’s) arrest on 20 September 1998, Anwar was not called to have his statement recorded, neither was any feedback given by the police regarding the progress of investigations, even after a reminder was sent by Anwar’s lawyers in April. However, a reply was eventually given to a question in Parliament, stating that a day after the report was lodged, the police had forwarded it to the Anti Corruption Agency (SPRM) for investigation, implying that the ball had been in their court all this while. However, the response to a letter subsequently sent to SPRM revealed that the latter had quickly decided the matter was outside their jurisdiction and had referred it back to the police immediately. Anwar made a fresh police report on 21 July about the duplicity of the police in this matter, even to the point of getting the Minister of Home Affairs to make a misleading statement in Parliament.

Anwar made a second police report on the same day, also in connection with Gani Patail’s involvement in the new case: last 30 June, two senior officials of the AG’s Chambers filed an affidavit in which it was stated that the three High Court judges who recently heard the case alleging Gani’s wrongdoing in 1998 unanimously ruled that he had not committed any offence, whereas at least one of them dissented. This affidavit was used in court to support the argument that there was no reason to bar Gani from playing a role, with one of the officials giving evidence based on it during the hearing, under oath. Anwar’s report claims that it is impossible that the two officials who prepared the affidavit were not aware that the ruling was not unanimous, making their sworn testimony a lie: a serious misdemeanour.

As AG, Gani is still playing a crucial role as the one who makes the decision whether or not to proceed with a case – and no exception is being made in Anwar’s new case.

Musa Hassan was, at the time of the first trial, a senior detective, but has now risen to the top post of Inspector General of Police. The affidavit and police report mentioned above also detailed his role in the falsification of evidence.

According to sworn testimony by lawyer Manjeet Singh, Musa was also the one who approached him to offer a deal to Dato’ Nallakaruppan, whom he was representing. Nalla, Anwar’s tennis partner, had been arrested for a minor firearms case – he had a firearms licence but had forgotten to renew it and had a small number of bullets in his possession. Shockingly he was detained under the ISA (detention without trial), and was, through his lawyer, threatened with the death penalty. The deal was, you will be let off the hook if you agree to make a statement incriminating Anwar in sexual misconduct.

Musa is also believed to have been involved in coaching and intimidating some of the key prosecution witnesses. Azizan Abu Bakar, the complainant on whose police report the 1999 case was based, was not blessed with great intelligence, and he stumbled through cross-examination, actually admitting at one point that he had not been sodomised, and had to have words deftly put in his mouth by the chief prosecutor to save the prosecution’s case. This was allowed by the judge, despite vigorous objections by the defence.

Saiful (of the new case) is a more intelligent young man, albeit a college dropout. Yet already, he has had meetings with Musa Hassan as well as another senior police senior who has worked closely with Musa in both cases (and again, has been promoted since the first one, to Director of the CID), Rodwan Mohd Yusof. Why would such high-level meetings be necessary if the case is a straightforward allegation of sodomy?

It is worth noting that both Gani Patail and Musa Hassan were present at the police headquarters at the time when Anwar was viciously assaulted by the chief of police. They knew about the assault, who did it, and that Anwar was grievously injured as a result. They connived in the cover-up of this event.

14. For the 1998 cases, elaborate preparations were made well ahead of Anwar’s arrest. More than a year before, rumblings and rumours alleging sexual misconduct had begun making the rounds, and a sleazy book entitled “50 Reasons Why Anwar Cannot Become Prime Minister” was circulated at the 1997 UMNO General Assembly. A number of senior UMNO politicians were later identified as masterminds of this concerted effort to get rid of Anwar.

Disgruntled and/or greedy individuals were found to play various roles in the fabricated story which would be used in court. Soon after this, senior police officers who had all along had a good working relationship with Anwar, suddenly, and without reason, became hostile. Arrests of Anwar’s close associates took place just before and after his own arrest, indicating that they had all been identified beforehand. The mainstream media also played an important role in supporting The Story, with Dr Mahathir, who had earlier claimed the allegations were just slander, stating publicly that he was convinced Anwar was guilty and had incontrovertible proof of it. When the trial got under way, however, he declined to share it in court.

There have already been signs of political interference in the case, adding fuel to the high-level political conspiracy theory.

1. It has transpired that Saiful had been in contact with the prime minister, the chief of police and another senior police officer before he made the police report (and some of them even before the date of the alleged offence). The excuses he gave for these meetings are hardly credible: he said he met the PM to ask about getting a scholarship (the college drop-out..; other aspiring students simply apply through the relevant government agencies), and met the police officers to seek protection against Anwar’s advances (other people would make a police report at the nearest police station, but Saiful only did that a day after he met the senior police officers). Coordination between the main players has not been perfect: Najib at first denied ever having met Saiful, but was then forced to admit that he had.
2. The chronology: Monday, Saiful meets Najib; Wednesday, he meets CID chief Rodwan; Thursday, the alleged offence takes place; Friday, Saiful, apparently in good spirits and health, attends the AIC event at Anwar’s house; Saturday, he is examined at two hospitals, with more than two hours’ gap between, and subsequently lodges a police report against Anwar.
3. It has been ascertained that, well before he joined Anwar’s staff, Saiful had had frequent contact with Najib’s private secretary. He only joined Anwar’s office about three months before he made the report against Anwar, when, following the General Election in March 2008, Anwar was short of staff since several of his aides had won seats in the election. This suggests that Saiful was deliberately planted in Anwar’s office.
4. Since Saiful made the police report against Anwar, he has been running a blogsite which regularly makes what can best be described as political attacks on Anwar.
5. Although senior lawyers in the AG’s Office had advised that there was no ahead with the prosecution. It is as if evidence is just a secondary concern.
6. An assistant imam of the mosque where Saiful swore his oath subsequently held a press conference stating that he had been forced against his will to represent the mosque management at this controversial event. He was sacked almost immediately.
7. As mentioned above, the judge who was originally assigned to hear Anwar’s case in the Sessions Court was quickly replaced when she began to make decisions which were inconvenient.
8. A DNA Bill has recently been rushed through Parliament. It seems likely that the hearing of the case was held back to enable the Bill to be passed, so that it could be used for this case.
9. Anwar filed a complaint of Qazaf (giving false evidence related to a sexual offence) in the Federal Territory Shari’ah Court, against Saiful. It is understood that the FT Religious Authority, under whose jurisdiction the Shari’ah Court comes, did indeed make investigations and were ready to charge Saiful. However, at this point they were apparently instructed not to proceed with the case. A new application to proceed with the case has been made by Anwar early this year, and the hearing is set for 13 January.

Although the Shari’ah courts in Malaysia deal mostly with family-related cases, Anwar’s filing of a complaint against Saiful is entirely within the jurisdiction of the Shariah Court, since Qazaf is a misdemeanour mentioned specifically in Islamic jurisprudence. It is also fitting because it is Anwar’s worldwide reputation as a Muslim leader which his enemies have targeted, both in the current case and in 1998.

10. It is difficult to avoid the conclusion that senior officials in the police, the Attorney General’s Chambers and the judiciary are working in cooperation with top political leaders to ensure that a conviction will be obtained.

The hearing of the main case is now set to commence on 25 January 2010. It remains to be seen whether the judge of this new case will follow in the footsteps of Justice Augustine Paul who presided at the first trial in 1998 – he repeatedly cut off defence attempts to argue along the lines of political conspiracy, exclaiming “Not relevant!” – a phrase which became an iconic if profoundly sad joke.

What is evident is that the chosen judge will face immense pressure to manage the case according to the script.

International Bureau

People’s Justice Party

13 January 2010