Score One for Anwar

Malaysian court throws out DNA evidence in sodomy case


A Kuala Lumpur High Court Tuesday handed Malaysian opposition leader Anwar Ibrahim a major victory in his long-running sodomy trial by throwing out purported DNA evidence supposedly proving he had sex with former aide Mohamad Saiful Bukhairy Azlan.

The DNA evidence is basically the only physical link between the 63-year-old Anwar and Saiful, who accused the former deputy prime minister of raping him in June 2008.

"I am grateful for the verdict and this just further supports what I have said, that I am being persecuted unfairly by the authorities in their bid to silence me," Anwar told reporters.

On Tuesday, Malaysian Bar Council president Ragunath Kesavan was quoted by Agence-France Press as saying the High Court's decision, which comes after a series of failed legal petitions lodged by Anwar, severely undermines the prosecution's case.

“From what I've seen and heard I think the charge should fall. They should withdraw the proceedings because as it stands now there is nothing to link Anwar to the DNA evidence which has been produced," Kesavan said.

Anwar has been on trial since Feb. 3, 2010 in a case that has been marred by a long series of missteps and questionable rulings that recall his previous conviction for sodomy in 1998.  That case has been widely condemned by human rights organizations across the world.

The current saga began when a team of 20 commandos swooped down to arrest Anwar on July 16, 2008 outside his home, resulting in a loss of momentum for the three-party Pakatan Rakyat coalition he leads. In 2008 national elections, the opposition broke the ruling Barisan National coalition’s two-thirds hold on parliament for the first time since Malaysia gained independence from Great Britain in 1957. The case has now droned on for 13 months, leaving Anwar preoccupied with his defense and largely neutralized politically.

The proceedings, which could result in a 20-year prison term for Anwar,  now boil down to Saiful’s word against the defendant, legal observers say.

If Anwar wins the case, which seems possible given the throwing out of the DNA evidence, it would hand the opposition a major victory and likely create the perception for a second time that sex charges were dredged up against Anwar to drive him from politics.

However, in a Malaysian courtroom almost anything can happen. In repeated cases over the years, judges have found ways to keep from charging government figures and their cronies and have consistently ruled against opposition figures.
Which is what made Judge Zabidin Mohamid Diah’s finding so powerful. He ruled that DNA found on three items taken from the jail cell where Anwar was held overnight in 2008 were improperly obtained by law enforcement officials and were therefore not admissible in court.

In almost any impartial courtroom, the case probably would have been thrown out long ago. Saiful has acknowledged that he met with Prime Minister Najib Tun Razak before the alleged sodomy took place, raising the suspicion that the government engineered the case against Anwar to wreck his political career. In addition to having a well-reported affair with a female member of the prosecution team, who was later dismissed, Saiful also met prior to the rape charge with the policeman who engineered Anwar’s arrest in the 1998 case.

Anwar was suspended from politics until 2008 because of those charges, which came after he broke with then-Prime Minister Mahathir Mohamad.

In addition, two doctors who examined Saiful immediately after he complained of the rape said there was no evidence consistent with anal penetration and refused to lodge a complaint. Police later picked up one of the doctors and held him for three days, according to the website Malaysia Today, following his filing of the report that no assault had taken place.

When Anwar refused to give a DNA sample, complaining that previous samples used in the 1998 case were tampered with, the Barisan Nasional pushed a bill through the parliament allowing police to collect samples in criminal cases without the consent of the suspect.  On Tuesday, the court ruled that the current offence took place before the law was passedand that thus collectng the DNA samples from items in his jail cell was inadmissable.

The charges against Anwar also were later modified from forcible sodomy to consensual homosexual sex, which is illegal in Malaysia. Saiful wasn’t charged, although presumably he had also consented to homosexual sex.  

Other inconsistencies abound. Government doctors testified that Saiful had waited two full days after the alleged attack by Anwar to get a medical checkup.  However, he claimed to have not defecated or gone to the toilet during the entire two-day period. The government doctors said the semen could remain in the rectum for 72 hours without being spoiled as evidence.  They also claimed that semen had been found in Saiful’s mouth two days later after an oral examination.  Saiful said he hadn’t eaten or drunk water during the two-day period.

A government chemist testified that three different DNA samples had been discovered in the semen found in Saiful's anal region and clothes. Asked whose semen the samples might have been from, the chemist said no check had been made, since they were only seeking Anwar’s DNA.  At one point a witness testified that Saiful’s own DNA had been found in the upper tract of his rectum, leaving many to puzzle out how it got there.

Surveying the legal tangle, Human Rights Watch has urged Malaysia to drop the charges, condemning the case as a "charade of justice."

In what may be a related development, somewhat improbably,  Monash University’s Melbourne campus awarded an honorary doctor of laws degree last Friday to Najib despite the controversy over Malaysia’s court system, which has repeatedly been characterized as riddled with political favoritism and corruption.  It later transpired that Najib’s government had issued RM1.1 million  in research grants to academic staff of the Monash campus in Kuala Lumpur.

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