By
Sivarasa Rasiah Bolehwood productions in the late 1990’s launched its grand drama known as ‘Anwar Ibrahim and the Charge of Sodomy’, which failed spectacularly in the media, society and courtrooms. A pre-launch review explains why Bolehwood’s sequel has all the trappings of an equally spectacular failure.
It is just over 11 years since Anwar Ibrahim, newly sacked as deputy prime minister, was first slapped with trumped-up charges of sodomy and supposed corruption (abuse of power), and subsequently put through two trials which were condemned around the world as manifestly flawed and politically motivated. As a result he spent six years in detention in Sungei Buloh Prison, in solitary confinement throughout, with contact only with his family and lawyers. Finally, after his nemesis, former Prime Minister Dr. Mahathir Mohamed was reluctantly forced into retirement in October 2003, Anwar was acquitted and released on 2 September 2004 at the final level of his appeal against the conviction for sodomy.
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 on 28 June 2008 by a junior aide in his office Saiful Bukhari. Anwar says that the charge is, again, politically motivated, and 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 replays an old script with new actors – the current script also shows the previous episode’s features of political interference, manipulation of officers in the AG’s Chambers and police, and falsification of evidence all arising from a political conspiracy to stop Anwar’s political career.
A truly suspicious case
There are many facts about the current allegations made by Saiful and his behaviour which are already in the public domain. These facts speak for themselves and immediately show the lack of substance in the fabricated case now brought to attempt to bring down Anwar.
Saiful claimed in his police report of 28 June 2008 made at Hospital Kuala Lumpur (”HKL”) that he was sodomised by Anwar on the afternoon of Thursday 26 June 2008 at a condominium in Bukit Damansara. His version to the police in his police statement appears to allege that he had been assaulted about 8 to 9 times against his will by Anwar over the previous two months. In his police report made two days later on 28 June 2008, he claims that this incident of sodomy was also against his will.
This version immediately raises suspicion as to why this so-called “victim” is sodomised 8 to 9 times against his will over two months and yet made no complaint to the authorities. During that time, he was in regular contact with Anwar and all the other office staff at Anwar’s office.
It has also been revealed that on Wednesday 25 June 2008, the day before the last so-called assault on Thursday, he had met with a senior police officer Senior Assistant Commissioner Rodwan Mohd Yusof (then Deputy Director of Criminal Investigation Dept of the Royal Malaysian Police Force, now CPO Melaka) in the Concorde Hotel in Kuala Lumpur at Room 619. When asked by journalists about this meeting, Rodwan said he had no comment. Rodwan also played a key role in the police team in Anwar’s 1998/9 cases and in particular was infamous for his role in illegally using Anwar’s blood sample for DNA testing and was also embroiled in allegations of planting fabricated DNA traces on the infamous mattress brought to court. In the first trial in 1999, the DNA evidence was so discredited that even the hostile trial judge Augustine Paul was forced to expunge the evidence to assist the prosecution.
It has also since been revealed that the “victim” also met the current Prime Minister Najib Tun Razak (then the Deputy Prime Minister) a few days prior to the alleged incident. What is interesting about this revelation is that Najib initially denied meeting Saiful to the media, then admitted it, then said the meeting took place because Saiful (a university drop-out) was asking him for assistance to get a scholarship, and then told the media that Saiful said he was sodomised by Anwar and looked traumatised during their meeting.
Saiful’s behaviour after the so-called assault on Thursday also raises questions.
The next morning, Saiful went to the Anwar’s office as usual. He made no complaint to anyone and appeared quite normal. Later that day, he attended an Anwar Ibrahim Club event at Anwar’s house, at which Anwar was also present. There he helped serve coffee to the dozen or so persons present, showed no signs of fear or anxiety, and was able to sit and stand without showing any signs of discomfort.
The following day on Saturday in the afternoon about 2 pm, Saiful decided to go to a private hospital called Pusat Rawatan Islam (PUSRAWI) in Jalan Tun Razak. There he complained to one Dr. Osman that he had pain in his anus for a few days and that apparently a “plastic” item had been inserted. A proctoscopy examination by Dr. Osman showed no physical signs of penetration and a normal anus and rectum. After the examination, he then told Dr. Osman he had been sodomised by a VIP (Very Important Person) and was then advised to go for an examination at a government hospital. Despite HKL being virtually across the road, it took Saiful two and a half hours to get there. At HKL, where he reported that he had been sodomised, he was examined by three specialist doctors, which was a very unusual procedure in itself. These three doctors, in their official report, have stated that there were no “no conclusive clinical findings suggestive of penetration to the anus…” again reinforcing the conclusions of Dr. Osman.
Any objective investigator would have understood that a prosecution for sodomy would get nowhere in the light of such clear medical evidence. No objective prosecutor would have allowed the case to progress. Here we see the opposite – the investigation being driven fully although from the outset, the medical evidence itself ruled out penetration. The malice in the investigation further confirms the involvement of political motives.
This investigation was pursued despite the medical findings which would have been made available immediately to police investigators. Swabs taken from Saiful suspiciously took two days to reach the chemist lab for analysis. We know now that the prosecution will rely on purported DNA evidence to attempt to prove that Anwar was involved in an act of sodomy with Saiful without his consent.
How a 61 year old man with a bad back can force himself on a fit and tall 24 year old man will be an interesting question for all observers of this political trial.
The other interesting question will be, in the light of the emphatic medical evidence that there are no clinical findings even suggestive of penetration, the lack of credibility of any DNA report purporting to show that Anwar’s DNA was found in Saiful’s rectum. Such a report would in fact raise suspicion about such DNA evidence itself i.e. that such evidence had been fabricated or tampered with which is easy to do with DNA evidence especially when the perpetrators are the investigators themselves as in the 1998 trials.
Examples of fabrication of evidence to implicate Anwar
This would not be the first time in cases involving Anwar where the phenomenon of fabricated evidence has arisen. The cases of 1998 and 1999 were replete with incidents of manufactured confessions, fabricated DNA evidence and suppression of evidence on the part of the police and the senior prosecutors involved.
Several quick examples can be given:
Gani Patail who was one of the senior DPP’s prosecuting Anwar in 1998 was exposed this year as having fabricated medical evidence in the form of medical reports in the investigation into the assault on Anwar on the night of 20 September 1998 when Anwar was brutally assaulted by Rahim Noor. After the world saw Anwar’s black eye, there was an outcry followed by a police investigation. The Investigating Officer for the case, Dato’ Mat Zain, has now confirmed in a letter to the MACC dated 15 April 2009 that Gani Patail was actively fabricating false medical reports with the assistance of Musa Hassan (now IGP) in an attempt to suggest that Anwar’s injuries were self-inflicted along the lines of the suggestion then made publicly by Dr. Mahathir.
Fabrication of evidence against Anwar was also going on in other related cases and individuals. Gani Patail was implicated in serious charges of threatening Nallakaruppan with the death penalty to force him to give false evidence against Anwar. mThis was exposed in the form of a statutory declaration by Nallakaruppan’s lawyer Manjeet Singh Dhillon who was a direct witness to the blackmail attempt by Gani Patail to get false evidence against Anwar.
Federal Court judge Steve Shim in the case of Zainur Zakaria v PP [2001] 3 CLJ had this to say of Anwar’s application to disqualify Gani Patail and Azahar as senior prosecutors in the 1998 case because of their involvement in threatening Nallakaruppan with the death penalty to get him to fabricate evidence:
“In the circumstances, was he (”Anwar”) not justified, on a prima facie basis, in complaining that AGP (Gani Patail)’s conduct at the meeting on 2 October 1998 was an attempt to get Nalla to fabricate evidence in order to perfect charges against him for other alleged sexual offences?”
Yet Judge Augustine Paul did not disqualify Gani Patail and Azahar. Instead he found Anwar’s solicitor, Zainur Zakaria in contempt of court for filing the disqualification application and sentenced him to three months imprisonment. Gani Patail went on to become Attorney General. Azahar became a High Court judge. Bolehwood Boleh!
Sukma, the adopted younger brother of Anwar, was arrested in September 1998 as well, and held incommunicado for 14 days. His lawyer’s repeated requests to see him were rejected. He was subjected to mental and physical torture until he made a confession to committing sodomy with Anwar. The police officer named in the Court of Appeal judgment responsible for this was Musa Hassan now Inspector General of Police. A physical examination by one Dr. Zahari Noor showed there was no evidence of penetration – this report was known to the prosecution who suppressed it from the court when Sukma was produced in court to plead “guilty” based on his purported confession. Sukma’s family appointed lawyer was prevented the court from speaking on his behalf after objection by the prosecutors (Gani Patail and Yusuf Zainal Abiden). The Court of Appeal in the reported judgement of Sukma Darmawan Sasmitaat Madja v PP [2007] 4 CLJ 697] had this to say in June 2006 of the case:
“Here we have a case of an improper conduct of a prosecution by the intentional suppression of evidence favourable to the defence. And there can be no clearer case of an injustice where the plea of guilt is alleged to have been induced by illegitimate pressure.”
The arrest and detention of Dr Munawar Anees was similar to that of Sukma where he too was held in incommunicado detention, tortured and forced to make a false confession under duress of sodomy with Anwar. Unfortunately for him, all the appellate courts he faced were hostile. Judges like Low Hop Bing J in the Court of Appeal together with Zaki Tun Azmi (the current Chief Justice), Zulkefli Makinudin J and Nik Hashim J in the Federal Court made sure that Dr. Munawar’s request for justice and to have his case reopened for a new trial was turned down. They made sure that Dr. Munawar would never be able to expose the ordeal he experienced in 1998 at the hands of the police, prosecution and courts in a new trial. His application to review the earlier Federal Court decision was just turned down very recently on 28 December 2009 by a Federal Court panel comprised of Arifin Zakaria CJ (Malaya), Raus Sharif FCJ and Mohd Ghazali Mohd Yusuf FCJ.
The clear contradiction between the treatment of Sukma’s case and Munawar’s case at the appellate courts is obvious. In any criminal legal system, when a confession is challenged on the grounds that it is involuntary, the accused is automatically entitled to a full viva voce hearing (through witnesses) on its voluntariness. This safeguard is even more important when a guilty plea was recorded based on that involuntary confession.
Regrettably the highest courts in Malaysia have lost sight of such fundamental principles. By their actions, they have legitimised serious crimes committed by the police and prosecutors involved on Dr. Munawar when he was arrested, detained and tortured to obtain a false confession and then jailed for six months for the sole purpose of tarnishing Anwar’s name by association.
Malice and political conspiracy in the current case
Gani Patail is now the Attorney-General of the country. Musa Hassan is the head of the police force. Both names, and in particular Gani Patail, have been implicated by Mat Zain in the fabrication of false evidence, a serious crime in itself, to implicate Anwar in the “black-eye” investigation.
Investigation of the current case is under the control of the police who are under direction from Musa Hassan. The malice in the police investigation became obvious when armed policemen with balaclavas arrested Anwar at about 1 pm just outside his home on 16 July 2008 – this was about two and half weeks after Saiful’s report. The arrest was completely unnecessary as Anwar’s lawyers were to accompany him to IPD, KL (the Central Police Headquarters for KL) at 2 pm that day to attend at a pre-arranged and agreed appointment with police investigators to record his statement. Yet he was arrested as if he were a fugitive. Anwar was also held overnight in jail – again this was malicious and completely unnecessary. He was forced to sleep on the cold concrete floor which aggravated his old back injury. The reason given by the police for the overnight detention was that they had to finish recording his statement – his undertaking to return the next morning at an agreed time was rejected. It is now clear that he was held overnight in an attempt to illegally obtain DNA samples from him.
The political nature of the Saiful allegation was again confirmed when Saiful took part in a highly publicised purported “oath” in the Federal Territory of Kuala Lumpur Mosque on 15 July 2008 in the presence of Ustad Ramlang bin Porigi, one of the imams there. Subsequently in August, Ustad Ramlang revealed that he was directed by the Head of the Department for Islam and Islamic Affairs in Kuala Lumpur (JAIWP), Dato’ Che Mat bin Che Ali to be present there to witness the so-called oath taking. For making this revelation publicly, Ustad Ramlang was then transferred to the “finance” department of JAIWP and then subjected to disciplinary action a few months later.
Political interference is also demonstrated in the handling of the qazaf complaint filed by Anwar against Saiful on 9 July 2008 with JAIWP (qazaf is the offence in syariah law for publishing a libellous statement against another particularly in relation to sexual conduct). The enforcement department of JAIWP had completed their investigations within a few months and recorded statements from Anwar, Saiful and other relevant witnesses. JAIWP has not declared to date that there is no offence committed by Saiful. At the same time, no prosecution of Saiful has been initiated. The JAIWP officials have been directed by the Federal Minister in charge of Islamic affairs not to take any action against Saiful, on the pretext that the sodomy case is pending. This is wrong as the jurisdictions are separate and independent and again show the political interference in the case.
Malice and bias on the part of the prosecutors; withholding documents from the defence; an unfair trial
There is also serious concern about malice and bias on the part of the prosecutors. Gani Patail signed the certificate transferring Anwar’s current case from the Sessions Court to the High Court. Yusuf Zainal Abiden, the senior DPP leading the prosecution team in current case was deeply involved in the Sukma case and also in Anwar’s prosecutions in 1998. Others in the prosecution team were also involved in the 1998 cases. There are serious concerns therefore given the bias and mala fides or bad faith exhibited by the prosecutors in the earlier cases, that Anwar will not get a fair trial from the DPP’s prosecuting him now.
Some of this bad faith has already manifested itself in the question of discovery of documents and evidence in the current case. Repeated requests by Anwar’s lawyers for documents relevant for preparation of the defence such as witness statements of Saiful and other witnesses to be called by the prosecution and relevant medical and forensic reports and notes were not entertained by the DPP’s. Anwar then made an application for these documents to the High Court trial judge Justice Zabidin Mohd Diah which was granted. The prosecution appealed resulting in the Court of Appeal setting aside the judgement. Anwar’s appeal to the Federal Court was rejected on Friday, 28 January 2010 which is not surprising, given the political stance taken by the Federal Court judges on the Munawar case.
Despite the fact that Anwar’s appeal to the Federal Court on the key issue of production of documents was still pending then, the High Court trial judge on 6 December 2009 appeared to be under pressure to fix early dates for the trial and set the trial to start on Jan 25th 2010 for a month. The same judge had said earlier this year that the trial dates would not be fixed until the issue of the production of documents was decided in the appellate courts.
The fairness of the trial that Anwar will face is already in question by the denial of documents that are important for the preparation of the defence. In criminal trials in most other jurisdictions, an accused will be given, prior to the trial, the witness statements of all witnesses who will be called by the prosecution to testify against him and all documents that will be produced by those witnesses. This procedure ensures fairness to all parties, and prevents delay to the trial. The trial of Anwar will, despite provisions of the law to the contrary, will now proceed very much in the old style of trial by ambush. The details of the case for the prosecution and many key documents will be seen by the defence for the first time only at the trial, putting the accused and his lawyers under immense and unfair pressure.
Political conspiracy
The key dimension of the trial will remain the political character of the prosecution and the interest of certain involved parties in particular Gani Patail (the current Attorney General) and Musa Hassan (the current Inspector General of Police) and the current Prime Minister.
Anwar and the Pakatan Rakyat have subjected them to severe criticism in and out of Parliament – the AG Gani Patail for his own criminal conduct in the “black eye” investigation, his failure in ensuring any prosecution for many cases of serious corruption, and in particular in relation to the corruption and crimes exposed through the VK Lingam video clip saga; and the IGP Musa Hassan in relation to credible allegations about his own criminal conduct and corrupt links with leaders of underworld gangs such as BK Tan and Goh Cheng Poh. Anwar’s public criticism of the current Prime Minister’s suspected involvement in corruption in the Sukhoi jets and Scorpene submarines purchases by the Defence Ministry is a matter of record.
Anwar has also repeatedly called for Najib to allow for an impartial investigation to clear his name of credible allegations of his and his wife Rosmah’s involvement in the infamous murder of the Mongolian model Altantuya Shaaribuu. The internet blogs buzz with the sworn evidence of private investigator Balasubramaniam who says that Altantuya told him of her affair with Najib and her connection with the same arms deals and also about how DSP Musa Safiri, Najib’s ADC played a role in her arrest and disappearance. Yet incredibly, Musa Safiri was not even called as a witness during the Altantuya murder trial.
Anwar had in July last year and February this year also filed police reports against both Gani Patail and Musa Hassan for their role in fabricating evidence against him in the “black-eye” investigation in 1998 and also abetting the filing of a false police report on the night of 20 September 1998 in relation to his arrest at his home in Bukit Damansara.
None of these reports have resulted in any prosecution although one former Federal Court judge held the view that Gani did commit criminal wrong-doing in the “black-eye” investigation.
The manipulation of state agencies such as the police, the Attorney-General’s Chambers and other state agencies and the judiciary as happened in 1998 are happening again in the current case. What is at stake here is not a simple criminal case – what is really at stake here is the use of this framed up case as a political weapon to stop the advance of Anwar Ibrahim and the political movement of Pakatan Rakyat that he leads which threatens the very existence and future of the current Barisan Nasional government and its key leaders.
Sivarasa Rasiah is currently a vice-president of Parti Keadilan Rakyat and the Member of Parliament for Subang.
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Loyarburok Editorial Note: On 29 January 2010, Amnesty International urged the Malaysian authorities to drop politically motivated criminal charges of sodomy against Anwar Ibrahim, the country?s opposition leader, after he today lost an appeal for access to the government?s evidence against him.
"The remarks allegedly made by Nasir in Malacca today do not in any way reflect the views of the prime minister," the statement said, according to Bernama.
"This should act as a deterrent to ensure that similar statements are not repeated by any quarters," he added in a statement.
He had also threatened to revoke the citizenship of those making 'extreme demands' to scrap the subject cap for the SPM examination.
During a ten minute recess, another counsel for the prosecution team Noorin Badaruddin explained the situation to reporters.
This morning, the High Court agreed to adjourn Anwar’s sodomy trial to allow his lawyers to get a date to review a Federal Court ruling that upheld earlier decisions to disallow him from obtaining additional evidence for his case.
