Sunday, March 9, 2014

Anwar conviction marks a new era of repression


By Kim Quek
09.03.2014

The heinous transgression of justice with which the Court of Appeal had summarily convicted and jailed Anwar Ibrahim for the charge of sodomy on Mar 7 will go down as one of the most shameful episodes in Malaysia’s n judicial history.  The court has not only regurgitated the falsehood spewed by the prosecutor lock stock and barrel, but has rushed through to overturn a solid High Court decision and passed a 5-year jail sentence all in lightning speed, against all established judicial norms and common decency. In doing so, it has bared for the entire world to see how hopelessly servile to the political masters our judiciary has become.

Lead prosecutor Shafee Abdullah had on the previous day falsely alleged that High Court judge Zabidin Diah made the mistake of thinking that the individual receptacles containing the DNA samples were tampered with when in fact only the sealed plastic bag containing these receptacles were cut open. He went on to allege, also falsely, that based on this singular issue, Judge Zabidin had set Anwar free.

The truth is: Zabidin was crystal clear that only the plastic bag was opened up, not the individual receptacles. And contrary to allegation, Zabidin dealt extensively with other relevant issues in addition to the issue of sample tampering before arriving at his verdict.

HIGH COURT JUDGE DID NOT ERR

In Para 204 of Zabidin’s Judgement (“the Judgement”), he clearly described that all the receptacles were labelled and sealed, and they were in turned put into tamper-proof plastic bag which was then heat-sealed.

Prosecution had argued in the High Court that when investigating officer Jude Pereira cut open the plastic bag without authorisation, the integrity of the DNA samples in the individual receptacles were not compromised because these receptacles were sealed.

But Zabidin pointed out in Para 205 that defence’s specialist witness Professor Dr. David Wells had testified that, after examining the receptacles, he found them not tamper-proof. as the seal could be removed and re-sealed from the manner in which they were sealed and from the material used for the seal..

In other words, while the plastic bag was tamper-proof, the individual receptacles containing the DNA samples were not, hence the latter’s vulnerability to tampering.

Significantly, David Wells’ view was not challenged, neither did the prosecution advance an alternative view.

With that, Zabidin had ruled that “by cutting open the plastic bag, confidence in the integrity of the samples was gone”.

Note that Zabidin did not say the samples were tampered with; he only said he lacked confidence in the integrity of the samples, which view is perfectly legitimate under the circumstances.

And that is sufficient in criminal law to constitute reasonable doubt over, in this case, the only evidence that could have corroborated the complainant’s accusation.

And no amount of chest dumping or challenges by prosecutor Shafee to the defence to show conspiracy between officer Pereira and the chemist or to explain how Pereira could have cheated with the samples could overturn this “reasonable doubt” so established by the defence. In fact, the onus of poof is not on the defence to show evidence of how the investigation officer had cheated with the samples, but rather, it is on how the prosecution could convince the court that the integrity of the samples is guaranteed throughout the entire chain of events from the extraction of samples to the hands of the chemist.

Besides the fiddling of the plastic bag, Judge Zabidin also dealt with issues such as the implausibility of retrieving a good semen sample for DNA analysis of sperms after an unprecedentedly lengthy lapse of 56 hours after alleged sexual assault (normal limit is 36 hours), and the unanimous finding of all the four doctors who had examined complainant Saiful Bukhari Azlan that there was no sign of anus penile penetration on him.

Any reasonable judge who has read the judgement should be able to readily discern the falsity and distortion of prosecutor Shafee’s submission against Zabidin’s judgements, but not the panel of 3 judges in the Court of Appeal. The latter merely repeated the gist of Shafee’s argument in a few words and almost immediately after that, overturned the High Court judgement.

COURT PANEL APING PROSECUTOR

In passing judgement, panel leader Justice Balia Yusuf Wahi (the others are Aziah Ali and Zawawi Salleh) said Pereira had merely cut open the bottom of the plastic bag to put the receptacles into envelopes.  He did not tamper with the samples as the seals on the receptacles were intact. Balia said if only Zaibidin had realized that the tampering was restricted to the plastic bag, he would not have made the wrong judgement. Balia also said Zabidin had erred in giving “undue weight” to the 2 foreign experts, whom he described as “armchair experts”. He said Zabidin had misdirected himself on the integrity of the samples.  With these few words, he pronounced: “we allow the appeal and found the accused guilty of the charge.”

It is clear that the panel had essentially repeated Shafee’s false claims that judge Zabidin had misconstrued on sample tampering, upon which the latter acquitted Anwar. Meanwhile, the panel had completely ignored the defence’s exhaustive submissions over the past 2 days on many crucial issues that had effectively thrown the prosecution case into serious doubt.

PROSECUTION CASE RIDDLED WITH HOLES

 As it turned out, it is not Zabidin who had erred, but the judges who had failed to direct themselves over critical issues that include:

1.      Integrity of the samples cannot be guaranteed once the plastic bag was cut open, as the receptacles were not tamper-proof.

2.      Officer Pereira gave a phoney reason for the unauthorised opening of the plastic bag which was to re-label the receptacles, as these were already individually packed and labelled by experts who collected them, as rightly pointed out by Zabidin.  Being a senior police officer who knew the serious consequence of such a breach, Pereira must have a compelling reason to commit such a desperate act.  And since he had lied over the true reason, he had become a suspect for manipulating the samples.

3.      Pereira had kept the samples in his steel cabinet for 40 hours instead of placing it in the police freezer and delivering them to the chemist in the first instance as strictly instructed. This had compounded the degradation of the already badly degraded semen samples due to its unprecedentedly belated extraction from the complainant’s body. Pereira’s failure to explain such bizarre conduct had deepened suspicion of foul play.

4.      Despite such delays and extended exposure to room temperature (56 hrs before retrieval from the body and another 40 hrs under room temperature) which must have totally destroyed the semen and sperm samples for DNA test, the chemist’s report tendered in court indicated that the DNA was found to be in “pristine condition”.  Such miraculous phenomenon speaks for itself with regards to the credibility of the samples or reports.

5.      No satisfactory explanation was given over irregularities in DNA tests for semen retrieved from Saiful’s upper and lower rectum and anus including the puzzling presence of bodies other than “Male Y” which prosecution claimed to belong to Anwar. 

6.      All the 4 doctors who have examined Saiful had reported “no sign of anal penile penetration”.

With such a mountain of flaws, unanswered questions, irregularities and suspicion of the prosecution case staring at them, how could these judges in clear conscience pronounce that the prosecution has established Anwar’s guilt beyond reasonable doubt and ordered him to jail for 5 years? 

NEW WAVE OF REPRESSION
As if such an atrocious judgement was not stunning enough, the judges further rattled the defence and the audience by ramming through from deliberation to judgement to mitigation to sentencing all in record-breaking times.

The court took only 90 minutes of deliberation to overturn the verdict of a trial that lasted 2 years and an appeal that stretched another 2 years.

It allowed only one hour for defence to prepare mitigation before sentencing, despite protest that defence needed a few more days to prepare a medical report on Anwar’s multiple ailment and for Anwar to attend the King’s opening of a new parliamentary session and deliver his speech to the House as parliamentary opposition leader.

So what’s the hurry, if it is not to meet a dateline to thwart the so-called Kajang Move, which is a plan for Anwar to head the Selangor State as a stepping stone to Putrajaya? 

Nomination for the Kajang by-election, where Anwar will stand as a candidate, is on Mar 11 (Tuesday), so by hook or by crook, the court had to have Anwar convicted and jailed by Mar 7 (Friday) so as to disqualify him for the nomination.

What we have seen is a new low the Malaysian judiciary has descended to. To the point that It has virtually become a mere political instrument in the struggle of Umno to hang on to its precarious hegemony.

More than that, Anwar’s conviction has ushered in a new era of repression and persecution, starting with Anwar, to be followed by DAP chairman Karpal Singh who will be sentenced on Mar 11 on a sedition conviction, followed by many others who have already been charged and awaiting  trials.

Unless the masses are awakened to this stark political reality and become pro-active in defending their constitution rights from further erosion, the country is in for a bleak future.

Kim Quek

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