Federal Court missed many chances on sodomy II

Opposition Leader Anwar Ibrahim should lodge a petition for pardon after revision in the Federal Court.

COMMENT

COMMENT It would indeed be unfortunate, as implied by Shah Alam MP Khalid Samad in the media, if Opposition Leader Anwar Ibrahim decides not to petition the Agong for a pardon on the grounds that such a move would be tantamount to an admission of guilt. Anwar had consistently maintained that he was innocent of the charges brought against him in sodomy II.

Anwar can make such a petition, not on the grounds that he was admitting guilt, or was truly sorry, was expressing remorse and was promising never to repeat it and/or of his contributions to the nation, but on the grounds that the Federal Court which erred in facts and erred in law and the Attorney General committed grave errors which can only be put right by the Agong through the pardon. He need only focus on the charge sheet in his petition for pardon.

However, before lodging the petition for pardon, he has to exhaust all existing avenues and one that probably remains is an application for the Federal Court to revise its own decision on Tuesday 10 February on the grounds that it erred in facts and erred in law.

There are issues in Anwar’s favour and he should not prematurely decide to be a glutton for punishment. Sometimes, it’s necessary to eat humble pie. At least, if not for oneself, think of the family waiting at home! Are they going to be denied his presence for another five years for no rhyme or reason?

Anwar is duty-bound to address as far as possible at least some of the gaps in defence mentioned by the Federal Court in its written judgment and, again, challenge the premises on which the guilty verdict was upheld. Otherwise, there would always be a cloud of suspicion hanging over his head.

The Federal Court, in upholding on Tuesday 10 February the incarceration of Anwar Ibrahim for five years on a sodomy charge, cannot claim that it erred on the side of leniency even if it appears that the so-called accused could have been given up to 20 years. That would be stretching the imagination more than a little too far.

For starters, the appeal at the Federal Court level was heard over eight days and the Panel had two months to write the judgment. If there had been five separate judgments by the Panel, it would have at least to a certain extent assured the people that the Judiciary was trying to appear independent. The fact that there was one written judgment, apparently unanimous, raises a big question mark over the independence of the Judiciary.

The Federal Court didn’t consider the fact that the Attorney General clearly abused his discretionary powers under the Federal Constitution to allow the so-called complainant and as it emerges in Court, the accomplice Saiful Azlan Bukhari, to walk free.

It cannot be the intention of the framers of the Federal Constitution to allow abuse of discretionary powers in the manner that the AG decides whether to prosecute or otherwise.

Abuse of the AG’s discretionary powers can be raised by the fact that the AG did not charge Anwar’s accomplice, thus paving the way for the book to be thrown at the Opposition Leader. The treatment of the accomplice and the accused has been at the opposite extremes. There’s such a big difference in what has been meted out to Anwar by the Federal Court and how the accomplice was allowed to be treated.

If the Federal Court wants to claim that it erred on the side of leniency, it should have taken the AG’s position on the case into account, and just bound over the Opposition Leader to bring closure to the case.

It cannot go along with the fiction, presented by the prosecution, that this is about justice for the so-called victim. As Malaysian Bar President Christopher Leong has pointed out, this is a strange case, where the conviction is based on a victimless offence. Since there’s no victim, the Malaysian Bar has taken the position that Anwar should have been given the benefit of the doubt and set free. The question of justice for a non-existent victim does not arise.

In any case, the Court is not about ethics, moral values, justice or the truth.

It’s about the law.

The case is not about whether Anwar did it or didn’t do it.

It’s about whether the prosecution has made out a prima facie case before the defence was called and whether the charges can stand. The charges as it was made out could not possibly stand when there’s no evidence that there was penile penetration. That being the situation, it’s puzzling that the High Court ruled that a prima facie had been made out and called for the defence.

It was unsafe to convict the accused.

It compounded this misstep by going beyond and probing the DNA evidence. If the charge cannot stand, there’s no need to go into the DNA evidence.

There are other issues which have been flogged to death in the social media. Examples include the first doctor being described as a liar, a police inspector and the complainant being described as credible, independent experts dismissed as armchair witnesses, why Anwar didn’t provide his sperm for DNA analysis, why he didn’t swear on the Quran at a mosque like the complainant did and also went on to swear at the gates of the Kaabah, why the complainant brought along the KY Jelly, and his claim that Anwar asked him: “Can I f.ck you today?” All those who have done it should step forward and state their piece on this question.

The issue of a political conspiracy has been raised. Indeed, there has been circumstantial evidence on this.

However, it’s unlikely that the Federal Court could have taken this into consideration as far as the charges stand.

It could however have made a note of such a probability when deciding, as it should have, that it would be unsafe to convict the accused.

Kit Siang has asked for the “not guilty” version of the statement

It’s unfortunate that the Prime Minister’s Office issue a statement, immediately after the Federal Court pronounced Anwar guilty as decided by the Court of Appeal, without waiting for the actual sentencing to be done. This speaks volumes on executive interference in the Judiciary and the so-called independence of the Judiciary. The PM’s Office had explained that just like journalists, it had prepared “guilty” and “not guilty” versions of the statement.

Such an explanation is difficult to swallow since it’s not the business of the PM”s Office to compete with journalists. DAP elder statesman Lim Kit Siang has asked for the “not guilty” version of the statement to be released. He should save his breath!

On a separate but related issue, it’s difficult to fathom why lead prosecutor Muhammad Shafee Abdullah made those remarks attributed by the media to him. Shafee appears to be on the defensive when he should be neither seen nor heard any further on the matter. The alleged remarks bring the prosecution and the AG’s Chambers into public disrepute and contempt. They indicate a strong element of bias on the part of the authorities.

It’s also suspicious that Shafee was reported as saying in the media that the critics will eat humble pie once the written judgment was out. It doesn’t need a legal eagle to extrapolate on this statement.