THE GREAT SELLOUT: Malaysia’s darkest day for justice & democracy

Chief Justice Arifin Zakaria’s judgment upholding Anwar Ibrahim’s sodomy conviction is not only full of holes, it has set a dangerous legal precedent whereby innocent persons may be wrongly convicted for sexual crimes that they have not committed.

Despite complainant Saiful Bukhari Azlan’s evidence being flawed by inconsistencies and falsehood, Arifin Zakaria is adamant that Saiful’s testimonies are reliable, for which no corroboration is necessary.

How did Arifin come to have such unshakable confidence in Saiful? Arifin attributed his faith in Saiful to two factors: Saiful was able to give “minute details”, and he had stuck to his testimony despite a thorough cross-examination.

But such legal rationale does not seem to hold water. This is because anyone with a reasonable acting ability and memory would be able to do what Saiful had done, if given proper coaching and rehearsals by someone experienced in such sexual activities. And lo and behold, such an actor would then practically be able to get anybody in trouble for a concocted sexual offence under Malaysian law, if corroborative evidence is waived. And that effectively is what the current Federal Court ruling will lead to.

DEFECTIVE CORROBORATIVE EVIDENCE

Having dispensed with the necessity for corroborative evidence, which no doubt was prompted by Saiful’s numerous bungling testimonies such as the carpet that was not found, K-Y jelly that was obviously introduced belatedly as an after-thought and the alleged gift of Brioni suit that had no label, Arifin has no hesitation to use other corroborative evidence to bolster the credibility of Saiful’s testimony. Regretably, these supposedly good corroborative evidence for Saiful have also fallen flat. Examples:

· Arifin said that there is no security breach in the chain of custody of the DNA samples, but this claim is patently false. Investigating officer DSP Jude Pereira testified that he had cut open the big plastic bag containing the individual receptacles, which plastic bag, according to the High Court judgment, was heat-sealed and the only tamper-proof bag. Thus, by destroying this seal, the integrity of the samples was fatally and irretrievably compromised. Significantly, Pereira had failed to give any credible reason for this security breach.

· Arifin ruled that the samples were not contaminated. But again, this claim flies in the face of evidence to the contrary. Samples were retrieved from Saiful’s body 56 hours after alleged ejaculation, and the same samples were further stored in investigating officer DSP Pereira’s steel cabinet at room temperature for 42 hours, before they were delivered to the chemist.

And yet, according to Australian expert’s reading of the government chemist’s report, the samples were miraculously found to have suffered no degradation, whereas, according to these experts, semen retrieved 36 hours after ejaculation would have been so contaminated that they are usually discarded for the purpose of identification of its DNA.

Pereira failed to explain why he didn’t store the samples in the police freezer as strictly instructed and why he didn’t deliver them to the chemist in the first instance as required of him.

For a senior and experienced officer who was well aware of the fatal consequences of such serious breach of discipline, Pereira’s unexplained conduct naturally leads to suspicion of foul play, thus perhaps accounting for the miraculous phenomenon that no degradation had been reflected in the semen analysis report.

· Arifin had lauded the government chemist’s evidence, saying that there is nothing “inferiorly fallible” in it (whatever it means). But such claim is evidently unjustified when Arifin has yet to address the disturbing issues brought up by the Australian experts, such as the many discrepancies, deficiencies and flaws of the chemist’s DNA reports and hospital doctors examination findings, including the puzzling presence of DNA of multiple males extracted from Saiful’s rectum which the chemist have ignored.

SAIFUL’S STORY DUBIOUS

While Arifin has evidently failed to establish credibility for the DNA evidence, he is equally faulted for having glossed over other important evidence that have cast doubt over Saiful’s story, such as:

· All the four doctors who had examined Saiful had reported no physical sign of anus penile penetration which contradicted Saiful’s claim that the “fast and furious” act had caused him pain.

· Shortly before the alleged sodomy incident, Saiful met with then Deputy Prime Minister Najib Razak at the latter’s residence, who is considered Anwar’s arch political opponent. Saiful had also called then IGP Musa Hassan, who was the investigating officer in Anwar’s infamous Sodomy trial in 2009, besides having secret rendezvous with Senior Assistant Commissioner Rodwan Yusof, who had played a prominent role in manipulating DNA evidence in Anwar Sodomy I.

Such clandestine liaison with these top personnel, whose position/past history suggested they had reason to see Anwar’s political downfall, would have justifiably aroused suspicion of foul political machination in any judge, but not Arifin and his panel of judges. Arifin dismissed the allegation of political conspiracy outright on ground that it was not substantiated.

But has Arifin forgotten the cardinal rule of criminal justice that the onus is on the prosecution to prove guilt, and the defence to cast doubt? If reasonable doubt is created, that should be duly acknowledged and taken into proper consideration in favour of the accused. In fact, for sexual crimes with such heavy penalties (20 years maximum jail plus whipping), no judge will consider it safe to convict, unless guilt is proven beyond reasonable doubt.

CONVICTION TOTALLY FLAWED

With the only corroborative evidence – the DNA tests – shattered, and Saiful’s story punctured with holes, it really boggles the mind to imagine how the learned judges could have concluded that “there is overwhelming evidence that Saiful was sodomised by the accused because there is overwhelming scientific and corroborative evidence.”

In fact, this judgment is so contrived and so bereft of elementary legal sense that one could hardly believe that all the five judges at the bench in the nation’s highest court could have failed to reach the simple and obvious decision, which is to quash this totally flawed conviction by the Court of Appeal.

And that leaves us with the irresistible deduction that the dirty hands of politics are at work again, which, incidentally is made self-evident from the lightning speed with which a full written statement was issued by the Prime Minister to proclaim to the world that this is a balanced judgment made by an independent court, totally dissociated from the Executive. This press statement was released only minutes after Arifin read his conviction, even before the sentencing.

The unjust conviction and jailing of Malaysia’s parliamentary opposition leader against all human decency and legal principles has marked a new low of the judiciary, unseen in living memory.

This is indeed the darkest day for justice and democracy for a country teetering on the brink of a failed state with fast escalating religious and racial extremism amid rampant corruption and authoritarianism.

Now that the judiciary has virtually been taken over by the executive, and a lame duck parliament limping as rubber stamp for the executive, one wonders how much different is Malaysia from a dictatorship.

Are we content to be ruled by a corrupt dictatorship? If not, what must we do? - MAILBAG