Anwar Handed a Court Setback

(Asia Sentinel) Malaysian judge rules formerly blocked DNA evidence in sodomy trial is admissible

Malaysian High Court Judge Mohamad Zabidin Mohamad Diah reversed himself Wednesday to allow the prosecution to admit into evidence items containing DNA taken from Anwar Ibrahim in the opposition leader's sodomy trial.

The evidence was taken from a toothbrush, towel and mineral water bottle taken from a jail cell when Anwar was detained overnight in July 2008 after being accused of rape by Mohamad Saiful Bukhairy Azlan, a 25-year-old former aide to Anwar.

On March 9, Zabidin handed Anwar what appeared to be a major victory by throwing out the purported evidence, ruling it was inadmissible because it had been taken without the defendant's permission from items in the jail cell. According to Malaysian law prior to Anwar's arrest, DNA was not allowed to be taken without the permission of the defendant.

The 63-year-old Anwar faces up to 20 years in prison if he is convicted, which would effectively end his political career.

"This is a case of legal adventurism for political mileage," said Sankara Nair, an Anwar defense lawyer. "There is no power or law in Malaysia that compels a person to give DNA. I do not know why, but it has never been done in Malaysian law for a person to give his or her DNA sample on a court order," he said."

Zabidin's reversal presumably means that the DNA evidence can be compared in court with DNA samples taken from Saiful's anus and analyzed by Seah Lay Hong, a chemist and prosecution witness. Seah was forced by defense attorneys in February that the DNA could have come from as many as 10 different people, including himself.

Today, however, Zabidin said the earlier ruling was reversed in light of evidence that Anwar's detention was for a lawful purpose, meaning that obtaining the DNA without Anwar's permission was legal.

"Those items and all the evidences relating to the items are now admissible," Zabidin told the court. "My earlier ruling reversed."

The defense had charged that DNA taking was unlawful as he was not under arrest at the time. It is unclear if the police have powers to collect DNA from arrestees under the penal code The judge, however, dismissed a prosecution request for the court to instruct Anwar to give his DNA. Although the government pushed through a law after Anwar's arrest that allows the prosecution to compel defendants to do so, the opposition leader's case comes under the jurisdiction of the previous law.

Prosecutors said they would conclude their portion of the trial on March 24, allowing the defense to present its case. The trial has been underway for more than 13 months and has been marked by a long series of missteps by the prosecution, including questions over the DNA evidence, how and when it was taken from Saiful, where it was stored and other issues.

Saiful has testified that although two days had lapsed between the alleged offence and the taking of evidence, he had neither eaten, drunk water nor gone to the bathroom in that time. He has also testified that he met both Prime Minister Najib Tun Razak and his wife, Rosmah Mansor, as well as Rosmah's best friend prior to the time of the alleged meeting with Anwar. He also testified that he met with a police official who had played a key role in planting DNA evidence against Anwar in the latter's 1998 sodomy case, which has been branded a travesty by international human rights organizations.

The reversal of the decision came in the wake of Anwar's demand for a police investigation Tuesday of a video purportedly showing him having sex with a Chinese prostitute in a dingy Kuala Lumpur hotel room. Anwar denied he was the person in the 22-minute video, saying he was home with his family and staff aides on Feb. 21, when the video was made, and that he could prove it.

Home Minister Hishammuddin Hussein, said Wednesday he had asked a special task force to get to the bottom of the case as soon as possible. It was complicated today when leaders of Anwar's Parti Keadilan Rakyat called a press conference to accuse Shazyrl Eskay, a Malaysian businessman formerly close to Anwar, and Abdul Rahim Thamby Cik, an UMNO stalwart and chief minister of the state of Malacca, of being behind the video in an effort to entice other members of Anwar's party to defect to UMNO.

Johari Abdul, a PKR member of parliament, said Shazryl and Abdul Rahim had approached him to ask him to view the video, in which Anwar or his stunt double perform the so-called "advanced lotus" sex act to the benefit of four hidden cameras, and to bring more PKR members with him.

"Rahim told me he wanted to take me to see the prime minister, and that he would take care of all of my financial and security needs, should I agree to jump ship," Johari was quoted as saying in a story on the internet site Malaysian Insider.

The opposition members insisted that Anwar is not the man in the video. The opposition leader, they said, has a bad back which prevents him from adventurous sexual acrobatics.