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Sunday, April 20, 2014

WHAT WE TEND TO FORGET

By SSK

Last year, when the court acquitted Anwar Ibrahim of the charge of sodomy, the Pakatan Rakyat supporters hailed the ‘brave’ trial judge who ‘did the right thing’. Now that the Court of Appeal has reversed this verdict, the same Pakatan Rakyat supporters are screaming about a travesty of justice and allege political interference. To these Pakatan Rakyat supporters, ‘right’ means whatever works in their favour and ‘wrong’ is whatever that does not.

In a criminal indictment, the prosecution needs to prove guilt. The accused does not need to prove innocence. And this was the very basis for the Federal Court overturning Anwar’s first conviction of sodomy on 2nd September 2004. According to the three Federal Court judges, the prosecution had failed to prove Anwar’s guilt. In that same breath, the judges said they believed that Anwar was guilty but since the prosecution failed to prove it then the court has no choice but to free Anwar.

This was probably one of the most controversial court rulings in recent years where the judges were convinced of Anwar’s guilt and yet still freed him due to the failure on the part of the prosecution to present its case properly. Hence this was not about whether Anwar was innocent or guilty, it was about a technicality. He may be guilty but you failed to prove it.

Many Malaysians appear to forget that the devil is in the details, as they say. It is the technicalities that get you -- or, in Anwar’s case, that frees you.

In Anwar’s second sodomy trial, the same standards would apply. The prosecution will have to prove Anwar’s guilt. The burden of proof is entirely on the prosecution. And the proof that the prosecution had was the allegation by the alleged victim himself, Mohd Saiful Bukhari Azlan.

Furthermore, in a criminal indictment, although the burden of proof lies with the prosecution and the accused does not need to prove innocence, if the accused is able to raise any doubts then the benefit of the doubt has to be given to the accused. Hence while the accused does not need to prove his or her innocence, he or she will still need to raise a doubt. And once this doubt is raised it would be in favour of the accused.

This, Anwar failed to do. Anwar did not deny that he was, in fact, at the scene of the crime. He did not deny that Saiful had gone there to meet him to hand over an envelope. The CCTV recordings showed both Anwar and Saiful entering and leaving the scene of the crime. Anwar file a notice of alibi and said he was going to call 14 witnesses to act as his alibi, one of them his own wife, and in the end not a single witness was called. And no reason was given as to why he decided to abort calling these 14 witnesses.

Anwar’s defence was a mere denial, which is no defence. And Anwar made this denial from the dock, not a sworn testimony from the witness stand. Hence his denial was merely a statement and not considered testimony. It was almost like making a press statement outside court to the assembled reporters.

Nevertheless, in such an allegation, there would need to be corroborating evidence to support Saiful’s allegation. And this evidence was procured by way of a DNA examination that supported the allegation that Anwar had had anal sex with Saiful. Although Anwar’s defence team called two expert witnesses to try to dispute the findings of the government chemist regarding the DNA test, these two expert witnesses stated that what they were giving was a mere opinion. Hence the government chemist’s evidence was considered stronger than just the opinion of Anwar’s two expert witnesses.

The Court of Appeal took all these facts into consideration in overturning Anwar’s acquittal. The bottom line was, Anwar failed to raise any doubts regarding the allegation of sodomy that was made against him. He merely denied the allegation without any evidence to support this denial. The CCTV recordings showed that Anwar and Saiful were both at the scene of the crime and Anwar did not have an alibi to prove that he was not. Hence, based on the evidence presented in court, the Court of Appeal has to assume he is guilty as charged.

Anwar is appealing the decision by the Court of Appeal so we will know soon whether the conviction is overturned, whether it is upheld, and whether it is upheld with an increase in the sentence. If it works in Anwar’s favour the Pakatan Rakyat supporters will hail this as a fair decision and if it does not they will allege that it is a political conspiracy. This is the very low level of maturity of those who claim to be fighting of an independent judiciary. To these people, an independent judiciary means courts that rule in favour of the opposition.

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