By Nathaniel Tan,
It’s incredible what the prosecution keeps trying to pull in Fitnah II.
The issue being raised in court today and yesterday concerns – at its core – whether or not the alleged sodomy was consensual, as the prosecution charges.
All of Saiful’s testimony thus far states that he was apparently forced into sex, which is inconsistent with what the prosecution is charging.
Why is this important?
Under a (working) legal system, if any element of a prosecution’s charge is found to be untrue, the whole charge is dismissed, and the accused is innocent under the law.
What this means is that if the prosecution’s charge that Saiful and Anwar had consensual sex is inaccurate and inconsistent with Saiful’s testimony, then technically the whole charge should be dismissed.
For this reason, the defence applied to examine Saiful’s original statement to the police. Of course, the judge:
One has to ask the question: why did the prosecution decide to charge Anwar for consensual sodomy, assuming they knew full well what Saiful’s testimony would be?
June opined that it is because the burden of proof for consensual sodomy is lower – ie, it would be harder for them to prove (for obvious reasons) that Anwar raped Saiful, and easier (through DNA planting, for instance) to ‘prove’ that they just had sex.
Of course, in their blind pursuit of this conviction, they ignored the fact that their charge was not consistent with what Saiful had actually said. The facts are unimportant to a prosecution hellbent on a conviction at any costs.
This puts me in mind of the defective charges from Fitnah I:
To make things worse today, the judge has refused a stay of proceedings so that the defence can appeal the matter to a higher court. Why the rush??
Observe this oddity that followed:
The issue being raised in court today and yesterday concerns – at its core – whether or not the alleged sodomy was consensual, as the prosecution charges.
All of Saiful’s testimony thus far states that he was apparently forced into sex, which is inconsistent with what the prosecution is charging.
Why is this important?
Under a (working) legal system, if any element of a prosecution’s charge is found to be untrue, the whole charge is dismissed, and the accused is innocent under the law.
What this means is that if the prosecution’s charge that Saiful and Anwar had consensual sex is inaccurate and inconsistent with Saiful’s testimony, then technically the whole charge should be dismissed.
For this reason, the defence applied to examine Saiful’s original statement to the police. Of course, the judge:
“Although there is material contradiction in the police report and the witness testimony, the witness’s statement is not in conflict over the incident (of sodomy). Based on this reasons, Karpal’s application is dismissed,” says Mohamad Zabidin.In Malaysia of course, a material contradiction between a police report and witness testimony is no big deal in the pursuit of justice ala 1Malaysia :P
One has to ask the question: why did the prosecution decide to charge Anwar for consensual sodomy, assuming they knew full well what Saiful’s testimony would be?
June opined that it is because the burden of proof for consensual sodomy is lower – ie, it would be harder for them to prove (for obvious reasons) that Anwar raped Saiful, and easier (through DNA planting, for instance) to ‘prove’ that they just had sex.
Of course, in their blind pursuit of this conviction, they ignored the fact that their charge was not consistent with what Saiful had actually said. The facts are unimportant to a prosecution hellbent on a conviction at any costs.
This puts me in mind of the defective charges from Fitnah I:
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.Back then, the prosecution (including our friend Abdul Gani Patail) were tripping over themselves just to get some dates right.
To make things worse today, the judge has refused a stay of proceedings so that the defence can appeal the matter to a higher court. Why the rush??
Observe this oddity that followed:
Karpal made the allegation that Solicitor-General (II) Mohd Yusof had “came prepared” for today’s trial and was ready to submit his arguments to object to the defence’s application for a stay in proceedings.With all these shenanigans afoot, how can the various arms of government expect us not to suspect a conspiracy and predetermined outcome?
Karpal apparently hinted that the solicitor-general already knew the judge’s decision and had come ready to argue against his stay application.
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