Monday, March 14, 2011

Malaysia: The Unfortunate Prosecution of Anwar Ibrahim

The Malaysian government should be the big loser in a trial that is a travesty

Even to a Malaysia grown inured to the scandalous ins and outs of deviant sexual congress, Mohamad Saiful Bukhairy Azlan may have given new meaning to the phrase "go f**k yourself."

Saiful, a 25-year-old former aide to opposition leader Anwar Ibrahim, is the chief prosecution witness in Anwar's marathon sodomy trial. Dr Seah Lay Hong, a chemist and prosecution witness, was forced by defense lawyers to acknowledge on the stand in late February that DNA found in Saiful's rear end could have come from as many as 10 different people – including himself.

Saiful has done a pretty good job on his government, his country and Anwar. That is because the case is becoming a major embarrassment, calling up memories of Anwar's 1998 sodomy trial, which was universally branded a travesty by international human rights organizations. Mistakes made over supposedly conclusive DNA evidence in the long-running trial call into question whether the evidence could survive in a rational court of law. Other testimony indicates that Prime Minister Najib Tun Razak and his wife, Rosmah Mansour, among others, may have played a personal role in bringing the case to court.

Last Tuesday, High Court Judge Zabidin Mohamid Diah handed Anwar a major victory by throwing out purported DNA evidence supposedly proving he had sex with the 25-year-old Saiful. He ruled the evidence was inadmissible because it had been taken without Anwar's permission from items in his jail cell when he was first arrested on Saiful's complaint in July 2008.

Despite the plethora of mistakes, however, the government faces a dilemma. If it folds the prosecution, it hands Anwar a huge victory and gives considerable ammunition to opposition charges that the government and particularly Najib cooked the evidence to attempt to drive Anwar from politics. Accordingly, rather than giving up now that the last physical link between Anwar and Saiful seemingly has been discredited, the prosecution is refusing to fold.

On Friday, prosecutors moved in court to attempt to force Anwar to provide an additional DNA sample to replace the one that Zabidin threw out. Government prosecutor Yusof Zainal Abiden asked Zabidin to review his decision and to compel Anwar to hand over a sample.

That also raises a danger for Anwar if the prosecution appeals to Malaysia's Federal Court, Malaysia's supreme court. The court has shown a notorious malleability to the political system, ruling against the opposition in important cases, including one which in effect handed the control of the state of Perak to the ruling coalition after the opposition had won it in the 2008 national election.

Saiful, who was an aide to Anwar prior to filing the charges, has acknowledged in court that he met with Najib and his wife, Rosmah, on June 24, 2008, at Najib's home two days before the alleged sodomy. He also acknowledged that he had met with Rosmah's close confidant, the former track star Mumtaz Jaafar, as well.

He also acknowledged meeting secretly with Rodwan Mohd Yusof, a senior assistant police commissioner, twice before the alleged offence took place. Rodwan became famous in Anwar's 1998 trial when he illegally removed Anwar's DNA samples from forensic custody and planted them on a mattress allegedly used by Anwar for a homosexual dalliance. To protect the integrity of the prosecution's case, the presiding judge, Augustine Paul, expunged the entire DNA evidence at the time.

Under Malaysian law, police were previously barred from taking DNA samples from defendants without their permission. When Anwar refused to give a DNA sample, complaining that previous samples used in a 1998 case against him had been tampered with, the ruling Barisan Nasional coalition pushed a bill through the parliament allowing police to collect samples in criminal cases without the consent of the suspect.

However, since the alleged offense took place prior to the passage of the bill, presumably Anwar would still be exempted from giving DNA evidence.

In any case, the prosecution's conduct in handling evidence collected from Saiful's body and clothes has been woefully inept. Even if they were to take another sample from Anwar, it would be difficult to compare it to the evidence taken from Saiful.

According to testimony in court, no evidence was taken from Saiful's body until 56 hours after the alleged sodomy. When DNA traces of semen were allegedly found in his mouth, he said he had neither washed, brushed his teeth nor gone to the bathroom between the time of the offense and the period when he was tested. While DNA samples can still be taken effectively within 72 hours, in this case the handling of the evidence seems to have been casual at best.

Although Seah found evidence of DNA from other unknown males in Saiful's rectum, she said she had not tested to find out anybody else's identity. Asked by a defense attorney whether the DNA evidence could result in 10 different combinations or individuals, Seah agreed.

Last Friday, the investigating officer, Jude Pereira said that after collecting evidence from Saiful, he had put the swabs in a metal filing cabinet in the Brickfields police headquarters for 43 hours, ignoring an order by Siew Sheue Feng, a forensic pathologist, to put them in a freezer. United States Federal Bureau of Investigation guidelines state that "environmental factors, such as heat and humidity, can also accelerate the degradation of DNA."

Pereira acknowledged that degradation of the samples could have occurred because he ignored the pathologist's advice as well as standing orders of the Malaysian Inspector General.

Before being derailed by the current charges, Anwar led the opposition Pakatan Rakyat coalition to a historic sweep of five Malaysian states, winning 82 parliamentary seats in 2008 national elections and breaking the ruling Barisan Nasional coalition's two-thirds majority hold on parliament.

However, the opposition – a coalition of the largely Chinese Democratic Action Party, the Islamist Parti Islam se-Malaysia and Anwar's own Parti Keadilan Rakyat has stumbled as Anwar, preoccupied by his court cast, has been unable to focus completely on politics. Anwar has also been hampered by a six-month suspension from parliament over allegations that he had misled the body.

The case has now droned on for 13 months. Along with the suspension and a range of other actions, the opposition is increasingly neutralized. The next big test is expected to be a state election in the East Malaysian state of Sarawak, which must be held before the end of 2011. Asia Sentinel

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