October 29, 2010
Sodomy 2 Trial: Ride into Fantasy
by Terence Netto
COMMENT The Sodomy 2 trial of Anwar Ibrahim has been awaiting its ‘Azizan moment’ and appears to have had it yesterday.
Azizan Abu Bakar was once a driver for Anwar’s wife, Dr Wan Azizah Wan Ismail, and was a witness in the first sodomy trial in 1998-99 where he claimed in court testimony that he had been repeatedly sodomised by Anwar. Under cross-examination by Anwar’s lawyer, the late Christopher Fernando, he admitted three times while under oath that no such thing happened to him.
The next day, under re-examination by a prosecution lawyer, he retracted his admission of the day before. But in the courtroom of public opinion, the case of Sodomy I had collapsed. Though Anwar was found guilty and sentenced to nine years in prison, the trial had withered in credibility long before it eventuated in a guilty verdict.
Since then the ‘Azizan moment’ has come to signify the instant when from the clutter of witness testimony a shard emerges. This shard is what the judicial process is after in our criminal justice system: that in the crossfire of the adversary system, as each side presents its case, something like ‘legal truth’ emerges. On the basis of this ‘legal truth’, the guilt or innocence of the accused is established.
Hitting rock bottom?
In yesterday’s proceedings of Sodomy II, Dr Mohd Razali Ibrahim, one of three doctors who had examined the accuser, Mohd Saiful Bukhari Azlan, told the court under cross-examination by lawyer Sankara Nair that he found the complainant’s rectum empty.
Because Saiful had earlier testified in Sodomy II that he did not defecate for two days after he was sodomised by Anwar, the discovery by the examining doctor that his rectum was empty was startling.
Sodomy II didn’t have to arrive at its ‘Azizan moment’ yesterday for the case to have been divested of its credibility. That credibility, steadily shorn off the case by the prosecution’s refusal – upheld by the judge – to furnish the defence with the police and medical reports that are the normative requirements of due process, took another blow on Wednesday from the prosecution’s refusal – again sustained by the judge – to supply the clinical notes that Dr Razali made when first examining Saiful.
The doctor needed to look at them before he could respond to defence counsel Karpal Singh’s probing questions. But neither the prosecution nor the judge saw fit to refresh the doctor’s memory through recourse to his clinical notes.
There were moments in this case where from the standpoint of its credibility you think that it has hit rock bottom. Think again, because there would be another moment where you hear tapping from underneath. Sodomy II is a far way from bottom.