Terence Netto on Fitnah2 Trial
February 12, 2010
‘Shock and Awe’ in Sodomy II (Fitnah2)
by Terence Netto
After nearly two weeks of the Anwar Ibrahim’s Sodomy II trial, sardonically referred to in some circles as ‘Base Canard II’ (Fitnah2), the terms of recent vogue in military history will have to be pressed into service as description of the tactics deployed by both the prosecution and defence.
‘Shock and awe’, a phrase employed by a superpower as code for the pyrotechnical brilliance of their military campaign, nicely describes the prosecution’s tactics.
Their star witness, Saiful Bukhari Azlan, made a shocking claim on the overture to his alleged degradation before segueing into the startling revelation that he was constipated for some days thereafter.
But then he said he idolised his alleged sodomiser. Additionally, he claimed that the alleged experience of violation had him revolted enough to want to quit as aide and factotum to Anwar Ibrahim.
The speculative theories abound. However, there can be little room for the speculative in the tactics of the defence. Theirs is a ‘scorched earth’ policy: if they yield ground, they take no prisoners.
Their attempt to have the judge disqualified reflects this strategy. A ruling will be made on its application on February 18.
The defence’s gravamen concerns judge Mohamad Zabidin Mohd Diah’s earlier dismissal of their application to cite the UMNO-owned paper, Utusan Malaysia, for contempt of court for its report on a visit by court officials to the condominium where the alleged sodomy is said to have taken place.
The matter will turn on the accuracy or inaccuracy of the judge’s representation of what the Utusan report contained with respect to what was said in open court, as distinct from what was revealed in camera.
The notes of proceedings are the filter by which this issue is to be adjudicated.
The ‘Azizan’ Moment
If the judge’s representation was accurate, he is deemed to be above board vis-à-vis the defence’s imputation of bias. Otherwise, a plausible case of bias and consequential disqualification to continue hearing the case would be made against him.
This is the ‘Azizan moment’ in Sodomy II (Fitnah2).
Azizan Abu Bakar was the driver of Anwar’s wife who alleged in Sodomy I that he was sodomised by the then deputy premier. The trial was held more than 10 years ago
Under rigorous cross-examination by defence counsel, the late Christopher Fernando, Azizan sensationally admitted that the incident of sodomy did not occur.
However, under re-examination by prosecuting counsel, Azizan retracted this testimony and reverted to the status quo ante, which was that he was sodomised.
After that, in the courtroom of public opinion, the case of Sodomy I was effectively dead in the water. However, judicial exoneration of Anwar would only come, on protracted appeal, in August 2004, after he had served some six years in prison.
The ‘Azizan moment’ – the point where the contending imperatives of justice and of politics meet in an almost palpable tension – has arrived in this case rather early.
It might be a preternatural sign of general déjà vu with the entire topic.
Actually , even before the trial starts , the crucial Najib Moment should have stopped the entire farce since there was an element of mala fide when he first lied that he ever met Saiful, then retracted and admitted that he did…some few days before the sodomy report was made
sounds starkly familiar …that mongolian ?
lumut - February 12, 2010 at 6:54 pm
Talking about military lingo where is the Tok Cik moment of tactical retreat and redeployment? Perhaps a banker’s ‘no interest in premature withdrawal’ makes more sense?
Mr Bean - February 12, 2010 at 7:37 pm
Do you really think a motion to have the judge recused himself from the case or an application to have him thrown out for apparent bias in the conduct of the case would succeed?
Just to play Devil’s Advocate. I’m still statutorily eligible for the 72 Virgin’s at the Gates of Paradise.
Mr Bean - February 12, 2010 at 7:42 pm
On a more serious note, this skewed reporting by the print media long under the control of vested interests determined to see at any cost the preservation of the status quo, does no real prejudice as nobody in their right mind believes the allegation made. But more particularly because we do not have a jury system and the need to prevent jury contamination.
Having said that, it is nevertheless, a good defense strategy. It is always a good strategy to carefully lay the foundation for what is to come.
Mr Bean - February 12, 2010 at 7:51 pm
The question is how much weight will the court give to the unanimous medical opinion that there is no penetration. As Karpal said, there were “no conclusive clinical findings suggestive of penetration in the anus or rectum area.” Can the so-called DNA evidence produced by the persecution team carry more weight?
New Yorker Bean, as I am concerned, there was no sodomy except as a figment of Saiful’s imagination and the master puppeteer’s ploy to fix Anwar Ibrahim, destroy his credibility and end his political career. I am inclined to accept lumut’s comment. The case is full of “evil, frivolous lies by those in power” That means the government must drop the charge.–Din Merican
dinobeano - February 12, 2010 at 9:15 pm
Din Merican,
The trial judge in agreeing with the prosecution says the medical reports are not conclusive as they only corroborate what their makers have to say – and we need to hear from their makers directly. I cannot say I have an objection to that.
The defense says the medical reports are proof that penetration never took place and as penetration is an element of the Sec. 377A offence, the case should be struck out as an abuse of process. It is obvious that the defense wants to stop the trial without having to make its defense. No prima facie case has been made and the defense submits there is no case to answer. I agree.
It is the prosecutor who bears the burden of proof at the opening stage of the trial. Without evidence sufficient to make a prima facie case the trial judge has no discretion but to dismiss the case without calling for the accused to make his defense. The judge thinks there are triable issues i.e. issues which require adjudication which can be resolved only at the trial proper. He is treading a fine line here.
This is my reading of the facts from the sketchy reports.
My 2-cents.
Mr Bean - February 12, 2010 at 9:38 pm
“The question is how much weight will the court give to the unanimous medical opinion that there is no penetration.” Din Merican
The question of how much weight to give to the evidence is a question the judge alone will have to answer. That is part of the exercise in balancing the prejudicial and the probative in the interest of justice. But first he has to decide what is admissible evidence and what is not.
Medical reports WITHOUT THEIR MAKERS present in court to testify are not admissible evidence. The only purpose of admitting them into evidence is to prove the truth of its contents and that is hearsay and therefore not admissible into evidence in a court of law and not in a criminal trial. The trial judge wants to hear what their makers have to say about the relevant issues raised in these reports and if they have anything more to add. Let them be X-examined by the defense. It goes to reasonable doubt.
Mr Bean - February 12, 2010 at 9:56 pm
Medical reports WITHOUT THEIR MAKERS present in court to testify are not admissible evidence. And when they do it is their testimony that is the evidence and NOT the medical reports.
Mr Bean - February 12, 2010 at 9:58 pm
Kapish? You guys? If you don’t you’re not alone. Many law grads fresh from law school find it difficult to understand. Which is why 2 out of every 3 in every sitting would fail their professional exam.
Mr Bean - February 13, 2010 at 2:30 am