Sodomy Trial No. 2: Will we Malaysians stomach a gaol term again for Anwar Ibrahim?
June 19, 2009
Back to Gaol ?
by Beh Li Yih
www.malaysiakini.com
What is likely to happen when Opposition Leader Anwar Ibrahim goes on trial for sodomy in two weeks’ time? The worst-case senario, according to Anwar, would be for him going back to prison after a quick conviction.
Dato Seri Anwar Ibrahim, PKR-Pakatan Leader most feared by Najib and UMNO
While he can appeal against the conviction in the higher courts, bail could be denied and this would effectively put him back behind bars.
“The worst-case scenario is to deny me bail and have a quick conviction,” he told AFP ahead of his second sodomy trial which is due to start on July 1 and planned to last three weeks.
According to Anwar, false evidence would be introduced during the trial in a bid to put him in jail and end his political career. “It’s a convenient way for UMNO to get rid of me to settle their political problem,” he said.
Anwar, 61, has consistently rejected the allegations levelled by a 23-year-old former aide – the same charge that saw him jailed a decade ago – as a government conspiracy to derail his plan to topple the ruling coalition. Sodomy, even between consenting adults, is illegal and carries a penalty of 20 years’ imprisonment.
Currently out on RM20,000 bail
The opposition leader is currently out on a RM20,000 bail pending his trial but supporters have expressed fears that his bail might even be revoked during the hearing. In a pre-emptive move yesterday, Anwar applied to the court to strike out the sodomy charge on the grounds that two medical examinations of his accuser had found no signs of sodomy.
“You can’t proceed with the sodomy case when it is quite clear by the team of doctors… the medical experts that there is no trace of sodomy, so why do they proceed, except it is going to become a political ploy,” he said.
He vowed to put up a tough fight and would not dismiss the possibility of his supporters taking to the streets. But Anwar said the party would exercise “peaceful means” to voice their protests if he was jailed. “We will fight and I am now better prepared, unlike 1998, because that came as a surprise and nobody anticipated the ruthlessness of their manner,” he said.
He’s ready to face Saiful
Anwar also said he was ready to meet his accuser, Mohd Saiful Bukhari Azlan, who has kept a low profile since claiming he was sodomised by Anwar last June, face to face in court when the 23-year-old is expected to take the stand and testify against Anwar.
“I don’t have a problem with that. The issue is whether he should be ready with all the evidence against him, particularly the medical evidence,” said the opposition leader.
Anwar, a former deputy prime minister, was sacked in 1998 and jailed for sodomy and corruption. In 2004, the country’s highest court overturned the sodomy conviction, allowing Anwar to go free after six years in jail and paving the way for his return to politics.
Under Anwar’s leadership, the opposition last year dealt the ruling coalition its worst electoral setback yet but fell short of the numbers needed to form a new government. The opposition leader said that the Pakatan Rakyat coalition, which have differences in their ideologies, would not fall apart if he was jailed. “The opposition is mindful of this fact (that I might be jailed) and have taken adequate measures,” he said.
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Anwar was convicted the first time on similar charges. So they’ll make a play for bad character evidence. But that alone would not be sufficient for the court to find him guilty.
Mr Bean - June 19, 2009 at 5:11 pm
1.he said he’s ready to face saiful, then why he asked court to strike the charge.
2. If indeed the govt wants to get rid of him, why court free him on bail. does’nt the court is corrupt?.Moreover, the same corrupt court that free him on 2004.
3. Why don’t he reveals all evidences given to him rather than selective evidence.
perakman - June 19, 2009 at 5:50 pm
1. Facing your accuser, having your counsel cross-examining the guy, his demeanour in court etc would go a long way to establishing the credibility of this witness.
In a rape charge credibility of the witness is paramount. Destroy his credibility and there’s nothing much left.
True, in a case involving sodomy, a crime in Malaysia, consent is not relevant to prove sodomy. Consent normally would be the defense in a rape charge. The prosecution in this case does not have a steep slope to climb.
2. First it is the court that frees him on bail and not the government. If it is a bailable offense bail must be given. If you are a flight risk, bail may not be given. Had Anwar wanted to flee he would have done so many times over. He didn’t. What does that tell you? If bail is refused, it can be constested and the matter goes to appeal. What does the law on bail say?
3. Why is he not revealing all the evidence? He is the accused not the complainant.
If the government alleges, the government has to prove. If the government alleges you committed a crime, the government will need to show prima facie evidence of the commission of that crime – and that is done during the preliminary hearing.
If the government has insufficient prima facie evidence, the defense does not need to reveal their evidence but only to say they have no case to answer. If the court disagrees then the defense counsel would have to make his submission. It is during this stage i.e. the trial proper that the entire evidence is heard. If the court agrees with defense counsel that they have no case to answer, then the accused is free to walk. The defense does not need to reveal their evidence.
Mr Bean - June 19, 2009 at 6:38 pm
Why is Sivarasa going into the evidence at this stage?? Do it in rebuttal at the close of the opening submission by prosecution aftercounsel is asked to makes his defense.
Issues involving mala fide and abuse of process etc are issues for the court.
The discretion the court has, if any, to have the case “set aside” or “squashed” to quote him, is likely to be reserved for more extreme situations. In any case how do you set aside something or have something squashed that have not begun, that is not there?
Discrepancies and inconsistencies in statements issued can be explained away and that can only happen during trial.
Mr Bean - June 19, 2009 at 7:26 pm
If only AI is so impotent that Viagra cannot make his tool hard enough to penetrate the posterior opening. That will destroy all fabricated (or otherwise) evidence against him. That will be a Joker card indeed.
pat ling - June 19, 2009 at 8:51 pm
Being a true leader, I strongly believe Anwar will not flee. Anwar is NOT a coward and I pray he will not do the “Raja Petra”.
Yes… let’s fight and battle in the court ! Thats the civilized way to do.
Remember..We want to improve this country. NOT to “menjahanamkan” negara ! Sistem & Undang 2 mesti di hormati.
In the end, Allah will help the good guy (whoever he is) & truth will prevail.
Mohamed - June 19, 2009 at 11:34 pm
Sivarasa and geng are going on a fishing expedition, i guess.
They are trying to open the can of worms, before setting out on their real journey. Who knows? They might succeed – although the chances are negligible, given our most ‘noble’ judiciary.
Meanwhile, have a pleasant ‘fishing weekend’ Din, Puan, Bean and friends – i’m on my way to Jelapang – heard that there’re vast fishing holes up/down there.
Menyalak-er - June 20, 2009 at 12:12 am
Holes full of fish or fishy holes??
Mr Bean - June 20, 2009 at 1:21 am
Was not the 1st sodomy conviction based totally on hearsay ?? anyone!!
Comprehending hacks judge’s verdict merely needed layman’s common sense but deliberating it on the perspective of law troubled even the best of criminal lawyers.
The worst case scenario is when one man plays the judge , jury , prosecutor and the hangman simultaneously.
Danildaud - June 20, 2009 at 2:49 am
No. They cannot admit heresay evidence even if they want to. I think the trial judge reached his verdict by excluding a lot of the exculpatory evidence. You see from the rulings he made on issues of relevancy. Evidence is not evidence if it is not relevant. if it is not hearsay, it does not mean it is relevant. Hearsay evidence can be relevant but is not evidence if it is hearsay. If you can follow than you are better than most law graduates.
The law of evidence is never easy to understand. It is highly technical.
Mr Bean - June 20, 2009 at 3:06 am
Ahmad who passed by the apartment and heard cries from Saiful, “Anwar, give it to me! Give it to me!” and Muthu who screamed at Anwar, “Anwar, don’t do it! Don’t do it. Don’t sodomise Saiful, boss”.
Why can’t you call Ahmad and Muthu as witnesses to repeat what they heard in court? Is it not relevant?
Mr Bean - June 20, 2009 at 3:20 am
oooops not Muthu
Mr Bean - June 20, 2009 at 3:26 am
Muthu is an eye witness to the alleged crime.
Ahmad’s testimony will be viewed as hearsay even though it could be the truth can’t be admitted as evidence. Laid down in laymans language!
Happy father’s day!
Danildaud - June 20, 2009 at 4:01 am
How did Ahmad know it’s SAiful who said “Anwar, give it to me”??? Maybe, it’s just some tape-recording he heard? or… a few other possiblities….
If muthu was present during alleged sodomy, why didn’t he do anything? Unless, Muthu is a kid and coudln’t do anything physically to stop the alleged crime?
Sure, u can call both as witnesses but they are not reliable witnesses and it’s easy to challenge their credibility, thus rendering their evidence practically useless! No weight should be attached to their evidence.
nobeans - June 20, 2009 at 4:44 am
Sir,
My point of view is DSAI is already fed up (as all of us) with this nonsense. There are real issues out there – economics, sociology, integrity of Malaysia & Malaysians and others are at stake now. DSAI also needs to strengthen PR to become a strong government in waiting etc, which is clearly more important.
By submitting evidence at this stage and thus striking out the charges and if accepted by the court, thus we can be leave without all those sandiwara and boneka again. But I guess it is the BN strategy to prosecute him at all cost so that Malaysians will be distracted from the real issues. And ensuring that he will be convicted is depriving us of, or slowing our march down towards an alternative government.
__________
Nazryan, thanks for your comments and welcome to this blog where I try to engage people like you who care for Malaysia–Din Merican
Although I am a very optimistic person, but if the charges continue –my humble opinion is we are already in a pariah state. No wonder my mother support the opposition since the 70s until now.
On another matter – Din, is it true that high ranking government official votes can be known? Well of course we are not even talking about army & police. Can’t we do something about this since I know not many of the government servant agreed with everything that happening now.
nazryan - June 20, 2009 at 12:33 pm
Bean
How can a statement be classified as hearsay under the rules of evidence??
Danildaud - June 20, 2009 at 2:03 pm
“Ahmad’s testimony will be viewed as hearsay even though it could be the truth can’t be admitted as evidence. Laid down in laymans language!” danildaud
The truth is not what frees the accused but the lack of evidence of his guilt that does.
Ahmad’s statement of what he heard would be hearsay? If you’re the defense counsel in the case, that’s what you want to do i.e. exclude it as hearsay though relevant.
How is it relevant is the first hurdle to cross. Mere assertion that something is hearsay does not make it hearsay.
In a trial by jury (which in this case it is not), counsel would find a way to pop in the question to the witness sometimes knowing it is hearsay. “What did you hear?” That would cause the other counsel to jump to his feet and scream “Objection, hearsay”. It is the art of advocacy. The judge would then stop the witness. He may even warn counsel to stop treating the court as a circus after repeated tries.
However, if Ahmad’s ability to hear is an issue in the case then it is not hearsay. Ahmad could repeat what he heard but what he heard and repeated in court are not truth of its contents but the fact that he could hear. Once Ahmad is allowed to repeat what he heard, a jury would be influenced by its contents. The judge in his directions to the jury at the end would try to limit the damage done to the case, and direct that they ignore the contents and that it only goes to the issue of whether Ahmad is hard of hearing. But how could the jurors ignore when they have already heard what was said. There is a limit to mental gymnastics.
Remember in a jury trial, jurors get to determine the facts of what happened in a case and not the judge. This is an issue of fact and the issue is whether Ahmad could hear. But of course Ahmad’s ability to hear must first be an issue.
The judge always has the discretion to exclude anything that is relevant and is not hearsay considering its prejudicial effect. It will then be a matter for appeal – and appeal is always on the law and not the facts.
Sometimes what looks like hearsay is not hearsay. It all depends on how you use that particular piece of evidence. The emphasis is on the “how”.
Mr Bean - June 20, 2009 at 10:18 pm
Many times hearsay evidence is allowed without objection from either side.
Mr Bean - June 20, 2009 at 10:49 pm
“How can a statement be classified as hearsay under the rules of evidence??” danildaud
A statement cannot be ‘classified’ as such. It is either hearsay or it is not. There is nothing wrong with anything being hearsay. It depends on what you want to do with it.
A birth certicates that says you were born on 31.8.1957 in Batang Berjuntai is hearsay and is admissible in court. You are not submitting the document to show old it is but to prove truth of its contents. The moment you ask the court to believe you were born on 31.8.1957 in the town of Batang Berjuntai it becomes hearsay.
Mr Bean - June 20, 2009 at 11:02 pm
Hearsay is an out-of-court statement repeated in court as proof of contents.
Mr Bean - June 20, 2009 at 11:14 pm
I read your posts for a long time and should tell you that your posts are always valuable to readers.
p.s. Year One is already on the Internet and you can watch it for free.
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Thanks for Your Support and I watch Year One Online.—Din Merican
Watch Year One Online Free - June 21, 2009 at 3:52 am
I see a lot of pessemism-too many black cloud over the horizon- in this posting. Even AI himself seemed to be preparing for the worst and I think he knows what’s coming. I sensed AI is clamouring for public sympathy-kind of desperate strategy. I think it’s part of your job, Mr.din merican, to ‘put it together’-to convince him to be a fighter as he always was. It is disturbing to see him in such a mood, you know, like trying to throw in the towel even before the fight begin. Sometimes his antics of trying to delay and cancel the proceeding makes me wonder did h
othman - July 5, 2009 at 2:33 am
cont-
did he really do it?
othman - July 5, 2009 at 2:35 am