Anwar, judges and Islam

After Lingam-Mahathir, and especially since the Allah judgments, many are suspicious of Malaysian judges. Yet all agree some judges put the law first.

I wonder if our judges are more likely to depart from judicial norms in cases touching on Islam.

I’ve read several analyses of the judgment this week by which the Federal Court upheld Datuk Seri Anwar Ibrahim’s conviction.

A Queens Counsel (QC) said the court had unjustly dismissed opinions of foreign DNA experts offered on behalf of Anwar. The QC appeared to ignore the fact that the judges had to weigh the opinions of the experts against the evidence of credible chemists who said (1) sperm was present on swabs provided to them and (2) the sperm belonged to Anwar.

I wonder: if the local chemists are suspect, shouldn’t all DNA evidence ever supplied to courts by these chemists be similarly rejected? Shouldn’t many cases be re-tried?

The chairman of the Bar Council highlighted a legal twist which I would otherwise have missed.

The Federal Court agreed Anwar “committed an offence punishable under section 377B of the Penal Code”.

Since Mohd Saiful Bukhari Azlan says he didn’t consent to the act on any of many occasions – and the Federal Court says “we… find him to be a credible witness” – why was Anwar charged for consensual sodomy (Section 377B) and not sodomy rape (Section 377C)?

Was Saiful a victim or not? I think the chairman is right to call this a “glaring anomaly”.

The report of the QC’s comments did not include suggestions on how Anwar’s sperm might have been detected on swabs of Saiful’s rectum. Clearly the handling of the swabs is pertinent.

The swabs were handled by Supt Judy (Jude) Balcious Pereira.

On January 15, 2014, Justice Zaleha Yusof agreed with the Bar Council that Pereira was “not a fit and proper person to be admitted as a lawyer to practise in the High Court of Malaya”.

That agreement was in the wake of a finding by Malaysia’s Human Rights Commission, Suhakam, that Pereira was an “untruthful witness” in the inquiry into the arrest in 2009 of five lawyers for “failing to disperse” (The lawyers were actually representing clients). No disciplinary action was taken against Pereira.

In the Anwar case, Pereira cut open a sealed sample bag containing ten sealed swab containers and placed the swabs in individual envelopes. The court agreed with Pereira’s testimony that he did so in order to comply with internal police procedures.

No one has claimed the seals on the tubes were tampered with. No one has claimed any samples were planted.

However, the “pristine condition” of the DNA after long storage in non-recommended conditions is often mentioned.

It is thereby insinuated that evidence was planted. But no hints are offered as to the source of Anwar’s sperm.

Strangely, the three courts held that Saiful was a credible witness, especially the High Court which acquitted Anwar. I say “strangely” because this is not the opinion of the public.

The public is more persuaded by what Mohd Najwan bin Halim said.

The court noted Najwan’s claim that Saiful’s switch to Anwar’s camp was surprising because Saiful openly and consistently hated Anwar. Saiful had even worked for BN, Anwar’s nemesis, in the 2008 election.

Yet the court wasn’t swayed by Najwan. They wrote: “[Najwan] was called to discredit [Saiful]. However, no evidence was adduced to support his testimony. For that reason, we find that his evidence has no evidential value and does nothing to discredit [Saiful].”

The Federal Court was also unfazed by the admitted fact that though Saiful claimed to be raped – despite bringing KY Jelly to lubricate himself (this is in the judgment) – he did not wash himself for over 56 hours. The failure of a Muslim to wash for so long after the alleged violation is as hard to comprehend as his evidence-preserving, enduring constipation.

Based on (1) the chemists’ testimony that the seals on the ten swab tubes were intact, (2) the chemists’ finding that there was sperm on the swabs, (3) the claims of Pereira and the doctors that the swabs were of the rectum and anus, and (4) the chemists’ conclusion the sperm was from Anwar, the judges decided Anwar performed anal sex on Saiful.

The analyses are hazy about how else Saiful’s claim could be corroborated. Must Saiful produce four Muslim men who witnessed the act?

There are no hints about where the sperm might have been obtained. But the first doctor to examine Saiful said Saiful told him a plastic object had been inserted into his anus.

Is the planting of sperm into Saiful improbable?

How swayed were our judges by Saiful’s swearing on the Quran and Anwar’s refusal to testify under oath? Remember what I wondered about cases touching on Islam? – February 14, 2015.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.