Malaysian Judge says Anwar Must Put on a Defense

Opposition leader Anwar Ibrahim must put on a defense in his long-running sodomy II case, High Court Judge Mohamed Zabidin Mohamed Diah ruled Monday, despite a trial pocked with innumerable prosecution errors, missteps and doubtful testimony.

The ruling against Anwar had been expected, with the opposition leader telling Asia Sentinel last week in a telephone interview that he thought it was a foregone conclusion.

Zabidin, who overruled himself in March and allowed DNA samples taken from the anus of Mohamad Saiful Bukhari Azlan, Anwar's accuser, to be introduced in court, called Saiful a credible, truthful witness despite the fact that Anwar's former aide acknowledged in court that he had met with Prime Minister Najib Tun Razak and his wife, Rosmah Mansor, on June 24, 2008, two days before the offense took place.

Saiful also acknowledged he had met with Rodwan Mohd Yusof, a senior assistant police commissioner who was accused of illegally planting Anwar's DNA on a mattress in the latter's 1998 sodomy trial. To protect the integrity of the prosecution's case, the presiding judge, Augustine Paul, expunged the entire DNA evidence at the time.

The case has been condemned internationally, most recently by the parliaments of Australia and the United Kingdom, which said it "flouts international standards of fairness and adherence to the rule of law; and notes that this trial resembles the one he faced in 1998 in which the conduct of the judiciary was condemned by Malaysians and by the international community," according to Harakah Daily, the online edition of the newspaper of the opposition Parti Islam seMalaysia, or PAS.

Lawyers for Liberty, a Malaysia-based organization, called the trial a sham that has "absolutely no credibility whatsoever." From the inception of the case, the group said, "Anwar's lawyers have been fighting a losing battle – constantly obstructed and denied by the prosecutors and judiciary from assessing important and pertinent documents to the case including medical notes and other documents relating to the chemist and DNA reports" and added that the trial is being used to deny Anwar and the opposition coalition the ability to put on a credible campaign for the next general election, which is expected before the end of the year.

If Anwar is convicted, it effectively would end his political career, which restarted dramatically after he was freed from his earlier sentence in 2004. Under Malaysian law, Anwar can be sentenced to as much as 20 years in prison and be flogged as well. Anwar had refused to provide DNA samples in the current case, charging that samples were manipulated in the 1998 case. Under Malaysian law when he was arrested in 2008, suspects had the right to refuse to give samples. Anwar refused to do so, arguing that his DNA had been manipulated in the 1998 case and the government could be expected to try to do it again. However, the government pushed a law through parliament following his arrest to compel suspects to provide samples whether they wanted to or not. Accordingly, officials used DNA samples taken from a towel, toothbrush and mineral water bottle used by the opposition leader in the jail cell in 2008.

Zabidin handed Anwar a major victory in March by throwing out the purported DNA evidence, saying it was inadmissible because it had been taken without Anwar's permission from items in his jail cell. That would have effectively ended the state's case against the opposition leader, who heads Parti Keadilan Rakyat and leads the three-party opposition coalition, because the DNA sample was basically the only physical link between Anwar and Saiful. However, Zabidin reversed himself a week later after prosecutors that asked he review his decision, apparently applying the DNA law retroactively.

Defense attorneys had charged that Saiful had lied repeatedly in open court, and that there were many other holes in the government's case. They pointed out, for instance, an investigating officer had kept the DNA samples for 97 hours before handing them over to a government chemist. Saiful himself testified earlier that at least 56 hours had elapsed between the time of the alleged offence and when the DNA samples were given to government investigators, but that he had neither gone to the bathroom nor eaten or drunk water during the period, which could have contaminated the sample.

Despite the fact that two doctors had submitted testimony that Saiful had approached them for examinations, they found no evidence of tearing or scarring that would have indicated Saiful had been sodomized, Zabidin said there was nothing inconsistent with the clinical findings by government doctors and chemists.

The judge was quoted in local media as saying that even though Saiful did not lodge a police report immediately after the alleged sodomy took place, or did not resist the alleged act, it did not mean he had lied under oath.