The Anwar Conviction in n Parts — The Facts (Part I)
This is the first in an n-part (where 4<n<12) series about the recent Malaysian Federal Court ruling on the Anwar Ibrahim sodomy case (‘Sodomy II’). Last month the Federal Court dismissed Anwar’s appeal against the Court of Appeal decision, sending him to jail for 5 years and likely ending his political career.
This is an n-part series because I have no idea how many instalments there will be. The initial idea was to write one very long piece dealing with the entire case. But instinct says that people will be more willing to read a few (relatively) short articles instead of one long one.
Part I will simply outline the facts of the case as laid out in the Federal Court judgment. For a much longer elaboration of the facts you should read the first 15 pages of the 2015 Federal Court judgment. You may also be interested in reading the judgments of the High Court and Court of Appeal.
High Court judgment:http://www.malaysianlawreview.com/sample/PP%20v.%20Dato%20Seri%20Anwar%20Ibrahim.pdf
Court of Appeal judgment:http://www.kehakiman.gov.my/directory/judgment/file/w-05-19-01-2012_datobalia.pdf
In the subsequent instalments, we will attempt to pick apart all the questions and inconsistencies surrounding the case, the judgment, the prosecution’s case and the defence’s arguments. Many of the developments in the case (most prominently Anwar’s claim that the case was a political conspiracy targeting him) were unfortunately not dealt with in substance by either the prosecution or the defence.
Ultimately, we will be attempting to answer two questions:
- Should Anwar have been convicted?
- Did Anwar do it? (Or rather, as we shall see, the more pertinent question is perhaps ‘Could Anwar have done it?’)
These are subtle differences between the two. Any justice system can only go so far in determining the ‘truth’ of a case. A trial is a tool we use to try, as far as we can, to bring some order and logic to the messiness, general unreliability and discrepancies of memory and human error.
To explain this more easily, it’s useful to consider the possible outcomes of any criminal case:
- Convicted, and guilty.
- Convicted, and innocent.
- Acquitted, and guilty.
- Acquitted, and innocent.
In an ideal world, we would always get Outcomes #1 and #4. But because no justice system can really claim to find anything with 100% certainty, we can never absolutely know the truth of any case.
Also, there has to be a balance between finding the truth and preserving the ethics and integrity of our system. On the one hand we want to get as much relevant information as we can. On the other, we want to make sure that that information can be accounted for — so evidence cannot just be made up or tampered with to aid one outcome.
Outcomes #2 and #3 happen because no justice system is perfect. Both are also contrasting outcomes. Here we often quote Blackstone’s ratio: “It is better that ten guilty persons escape than that one innocent suffer.”
In other words, it is better to have a system where we sadly miss a few wrongdoers, if it means that we do not punish any innocent people. The opposite to this would be a system where it is very easy to convict anyone — in such a world we may just lock up every wrongdoer there is, but it would also mean that innocent people would wrongfully be punished here and there.
Reality is somewhere in between, of course. The point is that any system will make trade-offs, and even if you think Anwar is definitely guilty (or innocent) in ‘truth’, what is really at stake here is whether he should be convicted or not. It may be possible that Anwar sodomised Saiful. It does not automatically mean the Court should have convicted him. (More on this in a later instalment)
Let’s look at the facts of the case first, though.
Facts of the Case
Saiful Bukhari Azlan, initially a volunteer at Opposition Leader Anwar Ibrahim’s offices, was working as a personal assistant to him at the time of the alleged offence. The alleged sodomy happened on 26 June 2008 at Desa Damansara Condominium at Bukit Damansara.
The Federal Court judgment goes into some detail of the day’s events, including the exchanges between Anwar and Saiful and the use of KY Jelly, a lubricant. Some of it is fairly explicit. Suffice it to say that Saiful was alleging that anal penetration occurred, and that ejaculation within his anus took place.
The next day (27 June 2008) Saiful handed in his resignation via email. Later in court he testified that this was because he no longer wanted to be be sodomised by Anwar. On 28 June 2008 Saiful and his uncle went to Hospital Pusrawi (a private hospital) complaining of a stomach ache and pain in his anus; during examination by Dr Muhammad Osman he told the doctor he had been sodomised by a VIP.
The doctor stopped his examination and referred Saiful to Hospital Kuala Lumpur (HKL), explaining that the hospital did not have the proper facilities for the required forensic examination and that any report from a private institution like theirs would not be admissible in court.
At HKL, Saiful was examined by three doctors and swabs were taken from various body parts. These swabs were placed into individual containers by a Dr Siew; the containers went into a sealed sample bag. Saiful also handed over other items for evidence, including shirts, trousers, underwear and the KY Jelly.
Investigating officer Supt. Jude Pereira took the sealed sample bag just after midnight, in the early hours of 29 June 2008. He placed the bag in a steel cabinet in his air-conditioned office. On 30 June 2008 Pereira cut the sample bag open, putting the sample containers into individual envelopes. Later that day he handed these over to chemist Dr Seah.
On 11 July 2008, HKL’s Clinical Forensic Department received the chemist report along with its analysis. The doctors who examined Saiful prepared a report of the clinical forensic case. Dr Seah’s analysis found sperm cells in the samples, and sperm heads upon performing a microscopic exam. The analysis also found three DNA profiles on one swab (from Saiful, ‘Male Y’ and an unknown male), and two DNA profiles on several others (Saiful and ‘Male Y’). The report found no conclusive signs of penetration of the anus, or defensive wounds that might be consistent with those of a victim of sexual assault.
On 16 July 2008 Anwar was detained at the KL Police Contingent HQ. In his holding cell, Anwar had a bottle of mineral water, two towels and a ‘Good Morning’ package given to him including a towel, toothbrush, toothpaste and a soap bar. The next day, when he was taken out of the lock-up, Supt. Amidon and Insp. Nur Ayuni took a strand of hair, a toothbrush, a towel and a mineral bottle from the lock-up. The items were placed into envelopes and given to Supt. Pereira, who again kept them in his office’s steel cabinet, before handing them over to Nor Aidora at the Chemistry Department.
Upon comparing the DNA profiles of ‘Male Y’ and the profile taken from the items in Anwar’s cell, a match was found.
The Context
The sodomy allegations hit in mid-2008, a few months after Anwar led opposition parties PKR, PAS and DAP to their best general election performance since 1969. The federal opposition denied the Barisan Nasional coalition its two-third supermajority in Parliament on the back of a loose pact between the three parties, with Anwar a key figure in brokering their cooperation.
While not perhaps as popular as his heyday in the late 90s, Anwar was enjoying a massive surge of support as he led what would later become Pakatan Rakyat against the Abdullah Badawi-led BN, taking advantage of voter disappointment with Abdullah at his failure to implement promised reforms.
The allegations predictably raised a media firestorm. Anwar had not yet returned to Parliament as an MP (his five-year ban on politics had not yet expired in March) and he had not yet unveiled his September 16 government takeover plan. Saiful’s police report made headlines both locally and internationally, and would dominate the national conversation for a long time.
Most significantly, the allegations were sensational because they appeared to be a repeat of similar charges from 1998.
Anwar was the then-Deputy Prime Minister to Dr Mahathir Mohamad, and the two had apparently fallen out over Malaysia’s handling of the Asian Financial Crisis. Rumours were spread about Anwar’s alleged corrupt practices and sexual misconduct, and in late 1998 he was arrested on charges of sodomy and corruption.
The international community, where Anwar enjoyed an excellent reputation, strongly condemned the allegations as a political fix-up. Ultimately, he was convicted and sentenced to 6 years for corruption and 9 years for sodomy.
In 2004, however, the Federal Court overturned his sodomy conviction (but not his corruption one). His sentence for corruption having been reduced for good behaviour, Anwar was released. The rest is history.
