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Thursday, October 21, 2010

IPU Report: Anwar Ibrahim Sodomy 2 Trial

The 24-page report on the trial of Datuk Seri Anwar bin Ibrahim in the High Court of Malaysia observed on behalf of the Inter-Parliamentary Union (IPU) by MARK TROWELL QC, August 2010.

Report on the trial of Datuk Seri Anwar bin Ibrahim in the High Court of Malaysia observed on behalf of the Inter-Parliamentary Union (IPU) MARK TROWELL QC
August 2010

My report was intended to relate to the critical period of the trial of Datuk Seri Anwar bin Ibrahim (“Anwar") in the High Court of Malaysia at Kuala Lumpur in August 2010 when medical and scientiic experts were due to be called by the prosecution to prove the central allegation of sexual penetration. The complainant Mohd Saiful Bukhari Azlan (“Mohd Saiful”) had tive months earlier testihed how Anwar had forcibly penetrated his anus with his penis.

In his opening remarks at the start of the trial, the chief prosecutor told the Judge that Mohd Saiful‘s allegation of anal penetration would be supported by scientific evidence establishing that Anwar’s DNA had been detected in specimens taken from his anus and rectum when he was medically examined two days after the incident.

He further explained that although the medical examination didn’t find any evidence of physical injury to the anus or rectum that wasn’t conclusive of the fact that penetration had not occurred. The trial was Hxed to be heard during the entire month of August, but another issue derailed the trial yet again. This report concerns that issue and the considerable impact it has had on the general integrity of the trial.

However, before discussing this issue, it is worth providing some background to these critical events.

General Background

Datuk Seri Anwar bin Ibrahim had in the 1990's been Deputy Prime Minister of Malaysia. However, in 1998 Prime Minister Dato’ Seri Dr Mahathir bin Mohamad dismissed him after he was charged with allegedly sodomising his wife’s driver and acting corruptly by attempting to interfere with the police investigation. He was convicted and imprisoned, but released when Malaysia’s Federal Court overtumed the conviction in September 2004.

On 2 September 2004 the Federal Court, by a majority of 2:1, upheld Anwar‘s appeal overturning the convictions and ordered his immediate release from prison. The Court was later to reject his appeal against conviction for acting corruptly, but he had already served that sentence.

The majority found the complainant, on whose testimony the prosecution was based, to be an unreliable witness. Given the various inconsistencies and contradictions in his testimony, the Judges concluded that it was not safe to convict on the basis of his uncorroborated testimony alone. They found that Anwar should have been acquitted without having to enter a defence.

The Federal Court’s decision was for Anwar Ibrahim the culmination of a 6-year struggle for justice after pleading his innocence through the various tiers of the Malaysian court system.

DDuring his lengthy period of incarceration, Anwar Ibrahim became the symbol of political opposition to the Mahathir regime. Amnesty Intemational declared him to be a prisoner of conscience, stating that he had been arrested in order to silence him as a political opponent.

Prevented by legislation from retuming to Parliament until April 2008, Anwar was still considered by many as having the potential to become the prime minister of Malaysia.

The ruling alliance, Barisan Nasional, called an early election for 8 March 2008, which some oommentators observed was an attempt to prevent Anwar returning to parliament.

The election was a disaster for Barisan Nasional. Opposition parties seized a third of parliamentary seats and Eve states in the worst ever showing for the coalition that had ruled Malaysia for half a century. Anwar‘s wife, Dr Wan Azizah Wan Ismail, who for a time had been Malaysia’s first female opposition leader, declared that she would resign her Permatang Pauh parliamentary seat and force a by-election.

On 26 August 2008, Anwar won the by-election with a majority of more than 15,000 votes retuming to Parliament as leader of the three-party opposition alliance known as Pakatan Rakyat (PKR).

Anwar Charged

Earlier that year, and just before the national election in March 2008, a young man named Mohd Saiful Bukhari Azlan (“Mohd Saiful") was invited by a friend, employed by Anwar, to work in the opposition leader’s ofice.

Mohd Saiful, then aged 23 years, was unemployed having left his electrical engineering studies at Universiti Tenaga Nasional because his academic performance failed to meet the required standard. He joined as a volunteer, but later became a paid member of staff as Anwar's private assistant.

On 28 June 2008, Mohd Saiful lodged a police report claiming that not only had Anwar sodomised him on the aftemoon of Thursday 26th June 2008, but that he had been sexually assaulted about eight to nine times against his will by Anwar over the previous two months.

On 29 June 2008, the non-government political news website Malaysiakini reported that an aide of Anwar Ibrahim had lodged a police report claiming that he had been sodomised by him. The next day, Anwar insisted he would fight a by-election later that year and form a new govemment despite rumours he would soon be charged with sodomy. He announced that he would contest a by-election for the Permatang Pauh parliamentary seat vacated by his wife and PKR leader Dr Wan Azizah Wan Ismail.

On 30 June 2008, the Malaysiakini news service reported that police investigations into the sodomy complaint against Anwar Ibrahim had been completed and the papers had been delivered to the Attorney-GeneraI's Chambers for further action. lt further quoted senior opposition party officials saying Anwar may be arrested in the next 48 hours, arguing it was to stop him contesting the by-election.

Anwar was arrested on July 15 2008 and kept overnight but no charges were hled over the accusations made by Mohd Saiful two weeks earlier. At the time, Anwar refused to provide a DNA sample, claiming that it could be misused to fake evidence against him. Police told Anwar to report back to them within 30 days.

After his release, the former deputy premier said the allegation was a high-level conspiracy to prevent him from entering parliament, adding that he refused to give his DNA, as he did not believe in the system.

"It should not be used as a personal vendetta against me. I was questioned for 5-% hours; I was stripped naked including the examination of my private parts. Why treat me like a major criminal and a public enemy?" [Reuters Thursday July 17, 2008]

Anwar said the police chief harbored a grudge against him after he lodged a report with anti-corruption agency officials saying the police chief had fabricated evidence against him in an assault case 10 years before.

Anwar was finally brought before the Sessions Court on 7 August 2008 charged under s. 377B of the Penal Code. The charge alleged that he committed the offence of sodomy against Mohd Saiful on 26 June 2008. Anwar pleaded not guilty to the charge. Despite the allegations of earlier sexual assaults, the prosecution chose to charge Anwar only with the last act allegedly committed at the Desa Damansara Condominium.

With Anwar in the midst of a political comeback, many supporters viewed the sodomy charge as a desperate attempt by the government to cling to power. The timing of the charge, they suggested, was just too coincidental with his return to politics.

Saiful’s Allegations

Mohd Saiful alleged that on the day of the alleged incident he was asked by Anwar to come to a private condominium not far from the centre of Kuala Lumpur to meet with him and discuss work related matters and deliver documents.

He alleged that he arrived at about 2.45pm. He stopped at the security gate and gave the password “Mokhtar", which he claimed Anwar had told him to use to enable him to enter the compound. Video cameras at the security gate recorded his arrival and later departure. Security cameras also monitored the public areas of the apartment complex. Having parked his vehicle, Mohd Saiful took the lift to the tifth floor and having entered the apartment says he found Anwar seated at the dining table. He said that Anwar asked him to have sex with him and being “angry and frightened” he complied with the demand and then went into the bedroom where the alleged offence took place.

Medical Examinations

Two days later, on 28 June 2008, Mohd Saiful went to the private hospital Pusat Rawatan Islam (“Pusrawi”) in Jalan Tun Razak to be medically examined.

During the examination, he told Dr. Mohamed Osman Abdul Hamid that for the last few days his anus was painful and that a “plastic" item had been inserted into it.

A proctoscopy examination by Dr. Osman showed no physical signs of penetration and a nonnal anus and rectum. After the examination, Mohd Saiful then told Dr. Osman he had been sodomised by a “VlP”. Dr Osman recommended that because of the allegation of sodomy he be examined again at a government hospital.

More than two hours later, Mohd Saiful went to Hospital Kuala Lumpur (“HKL”), which was very near to Hospital Puswari. Three specialist doctors examined him later that night, but again they found no evidence of injury and in their words “ conclusive clinical Endings suggestive of penetration to the anus and no significant defensive wound on the body of the patient."

Various swabs were taken from his body for scientific analysis. These included swabs taken from his tongue, nipples, body, perianal region and rectum. High and low rectal swabs and blood samples were also taken for DNA prohling. For some reason, these samples didn’t arrive at the chemistry laboratory for analysis until two days later and there was some issue about the proper labeling of the exhibits.

lt is interesting to note, that Mohd Saiful testified at the trial that he told the medical examiners he had not washed his anus nor had he defecated before the examination. He said under cross-examination that he had not washed to preserve the evidence, which was a curious thing for a victim of sexual assault to do.

It is well known that victims of sexual assault almost always wash their bodies in an attempt to ‘cleanse’ themselves of the sexual contact. Very few have the presence of mind not to wash themselves so as to preserve evidence of sexual contact. Mohd Saiful’s explanation was also curious because he claimed to be a devout Muslim, which meant that he would need to wash himself before being called to daily prayers.

But in any event, evidence of Anwar’s DNA upon or in the body of the complainant would undoubtedly be persuasive evidence of sexual contact, if it could be proved.

Before the adjoumment of the trial proceedings on 17 February 2010, Anwar’s lawyer Sankara Nair claimed there were many questionable aspects of the prosecution DNA evidence and announced that the defence had appointed foreign DNA and forensic experts to debunk the prosecution's claim of a DNA match.

Mr. Nair said the PKR leader had engaged the services of DNA expert Dr Brian Leslie McDonald from Sydney, Australia, and two forensic experts Prof Dr C. Damodaran from Chennai, India and Associate Professor David Lawrence Noel Wells from Melbourne, Australia.

The Malaysian Penal Code: "unnatural offences"

Anwar Ibrahim was charged with committing an act of sodomy. lt is more properly described as “camal intercourse" contrary to Section 377B of the Penal Code.

Homosexuality or homosexual acts are not defined in the Malaysian Penal Code. They are described by reference to "unnatural offences" deemed to be "against the order of nature" and are punishable by up to 20 years imprisonment and whipping.

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