Prosecutors Appeal Anwar Case

The complaining witness faces some sticky questions

By Jan. 25 – the day after the end of the Lunar New Year holiday, Malaysia’s attorney general, Abdul Gani Patail, must decide whether to appeal the not-guilty verdict in opposition leader Anwar Ibrahim’s Sodomy II case.

Unlike many western democracies, Malaysia allows the prosecution the right of appeal against a not-guilty verdict. Anwar was declared not guilty on Jan. 9 by High Court Judge Mohamad Zabidin Diah, who said that “the court cannot be 100 percent certain” that the DNA evidence against Anwar was not contaminated.

The political temperature has been rising in Malaysia ever since the announcement of the not-guilty verdict, with a steady stream of announcements in the mainstream press demanding that the prosecution appeal. The United Malays National Organization, the leading political party in the ruling Barisan Nasional coalition, has reaped the reward of considerable sympathetic publicity, alleging that justice has been denied for Mohd Saiful Bukhari Azlan, the star witness against Anwar.

Saiful’s father, Azlan Mohd Lazim, held an emotional press conference demanding that: “For the sake of my son, I plead to the AG to file an appeal.” The prosecution team, led by Solicitor General Mohd Yusof Zainal Abiden, has also demanded that the case be appealed. Saiful himself, a baby-faced 26-year-old, has asked that the case be appealed as well.

Leading the charge to ask for an appeal is said to be a group of UMNO hardliners reportedly led by the Deputy Prime Minister, Muhyiddin Yassin despite the fact that Prime Minister Najib Tun Razak has claimed that the acquittal underscores Malaysia’s commitment to the premier’s extensive reform agenda.

Abdul Gani, as attorney general, has the sole discretion to grant the appeal, based on whether Zabidin erred in his judgment on the DNA, and the matter doesn’t rest with either Saiful or UMNO. If the prosecution goes ahead with Saiful’s demand for an appeal of the case against Anwar, however, it brings back a difficult question that prosecutors have ignored since the onset of the case in June of 2008, when Saiful lodged a report claiming he had been sodomized by the opposition leader.

From the start, the prosecution has alleged that the reported contact between Saiful and Anwar was consensual. In court during the trial, which began in February of 2010, Saiful acknowledged that he had gone to Anwar’s condominium on the day the offense was said to have taken place with a tube of lubricant in his pocket, a clear indication that he knew what he was getting into. Anwar has said that he was meeting in the condo with a group of economists at the time, and while a CCTV camera picked up Saiful’s image in the lift, he denies that the former aide never entered the condo.

In any case, Saiful has never been charged by the prosecution for participation in an act of unnatural sex, as it is called in Malaysia. One lawyer in Kuala Lumpur, in an interview, compared the case to that of Anwar’s first sodomy trial in 1998, in which Munawar Anees, Anwar's former speechwriter, was sentenced to six months in prison on the same charge. It was alleged that Munawar took an overnight flight from the United Kingdom to Malaysia to be sodomized by Anwar, then turned around and got on a plane and flew back to the UK. Anwar served six years in prison in that case, which was universally condemned by human rights organization across the world as hopelessly rigged by the government to end his political career.

Both Munawar and another alleged participant in sex with Anwar later recanted their confessions, alleging they had been tortured into pleading guilty. Munawar’s appeal was rejected, however. Anwar was ultimately freed on appeal in September of 2004.

“When (Saiful) has committed the same act that Anwar has been charged with, why has he not been charged?” the lawyer asked. “Dr Munawar, who was basically a Saiful, was dragged into court and sentenced for six months’ jail for being the sodomee and not the sodomist. In this case the sodomist is charged with the same complaint, and the sodomee has got off. That is the situation.”

If Saiful is insisting that he wants to appeal the charge, the lawyer said, “the prosecution should begin initiating a charge against him as well. It is the prosecuting office that acts to protect the members of the public. I would like to see Saiful charged. He is part and parcel of this whole crime. One party cannot commit this crime alone. It takes two to commit the crime.”

Prime Minister Najib has reaped considerable praise for his statement that the government had nothing to do with Zabidin’s decision and that the case had been handled by the judge on its merits. During the trial itself, witnesses testified that Saiful had delayed for 104 hours in providing a DNA sample of Anwar’s alleged sperm.

Brian McDonald, a molecular geneticist, pointed out that no sperm after ejaculation could have survived 56 hours in Saiful’s rectum – during which he said he had neither gone to the bathroom nor eaten – and another 48 hours unguarded in an unlocked safe in the office of the investigating officer prior to being handed over to the chemical laboratory for analysis. It was this concern that led Judge Zabidin to say it was impossible to be 100 percent certain that the DNA hadn’t been contaminated.

If Zabidin’s assessment is correct, as he pointed out that leaves Saiful’s testimony as the sole link to a judgment against the opposition leader. But Saiful has never been arrested nor charged with consensual sex. Nonetheless, he continues to demand to be a complaining witness.