The judgment of Anwar – Gerard Lourdesamy

After 22 years at the Bar, the development and exposition of the law by our superior courts has never failed to amaze me. Their ingenuity and diligence ought to be commended. Their decisions deserve respect not least because of their consistency and predictability.

The judgment of the Federal Court in Datuk Seri Anwar Ibrahim’s final appeal against his conviction for sodomy comes as no surprise to many of us.

The purpose of a criminal trial is to do justice. The role of the prosecutor is not to seek a conviction at all costs but to ensure that justice is done to both the victim and the accused. The process has to be fair and impartial. The golden thread that runs through our system of criminal justice is the presumption of innocence.

The accused does not have to prove his innocence. It is for the prosecution to prove the charge beyond a reasonable doubt which simply means that a judge or jury must be sure before they can convict. The benefit of any doubt must be given to the accused. But the doubt must be a rational and not improbable doubt.

Since consent is not required for a charge under section 377A of the Penal Code by implication what it means is that this section deals with cases of consensual unnatural sex in the form of sodomy or fellatio (oral sex). Section 377C of the Code deals specifically with unnatural sex without consent and by implication it may involve some element of force or violence. That is why a heavier penalty is imposed by this section on offenders.

Anwar was charged under section 377A read together with section 377C of the Code. The complainant Saiful Bukhari swears that Anwar his employer had sodomised him on more than one occasion, at least eight or nine times prior to the incident that was the subject of the charge. KY-jelly a form of lubricant was used on these occasions and it was the complainant who brought this lubricant for use during their sex acts. They worked in the same private office and spent much time together including trips abroad.

Anwar bought expensive presents for his presumed lover and there was a great deal of affection between them. They both behaved normally despite their personal and intimate relationship that had gone on for some time.

But suddenly, the strident, handsome, well built six-footer, felt ashamed for himself and his family, degraded and used by Anwar and instead of going to the police or a rape counsellor, he chose to go and see a slew of politicians including the then deputy prime minister and his wife, his former political secretary and a senior police officer.

Is this the normal behaviour of a rape victim or someone who claims to have been sexually molested and assaulted by his employer? Do all victims of sexual offences in Malaysia have access to senior politicians at their homes?

Why did Saiful keep quiet for weeks or months about his sexual assaults by Anwar? Why continue to work for Anwar despite the assaults?

Why visit the deputy prime minister to complain about Anwar and then return to work for him knowing that he may be sexually assaulted again? Is it reasonable for Saiful to only become brave after meeting the deputy prime minister and then allow himself to be sexually assaulted by Anwar for one last time before going to the hospital and police for help? How do we know that Sailful was not a jilted lover, angry and dejected at being spurned by his boyfriend?

By any stretch of the imagination Saiful cannot but be an accomplice. He was complicit in the sexual acts and he never complained until after the last incident. And even then he remained for tea after the vicious attack and turned up for work the next day and even attended party functions.

Is this the reasonable behaviour of a victim of a sexual crime?

Anwar is charismatic but one cannot be so naive to the point that even after being sexual assaulted repeatedly one can still remain in adulation and admiration of Anwar just because he is your political idol.

This in itself is incredible if not implausible and compounded further by Saiful’s previous hatred for Anwar and the opposition. His sudden conversion as an acolyte of Anwar even surpasses that of Saul on the road to Damascus.

And yet he was found to be credible. Credibility is not determined by being consistent in a mechanical and methodical fashion. A witness can be coached to look and sound credible by experts in the art of court proceedings. Minute details derived from the sex acts may seem credible but it can also be recalled with great precision and accuracy if one is subjected to a daily dose of unadulterated gay pornography. That is hardly the ring of truth more so if the sex was consensual. Most persons enjoy good sex and want to have good sex. Therefore, their recollections of it can also be very detailed and convincing.

An objective and independent evaluation of the evidence would show that the sex was consensual and Saiful was nothing but an accomplice until the very end. The political conspiracy arose as a result of his mysterious supplications to the deputy prime minister and other important players for liberation from the sexual predator Anwar.

But the evidence that could have been obtained from these witnesses elicited under cross-examination was denied to Anwar by the trial judge on the grounds of relevance when these personalities successfully contested and set aside the subpoenas issued against them. How then do you expect the accused to prove the existence of the conspiracy to destroy him politically and socially if this opportunity was denied him? How does one substantiate an allegation if the opportunity is denied by the trial court? How then can one conclude that the dock statement was a mere denial?

As an accomplice where was the corroborative evidence required to convict? In the Sodomy 1 appeal in 2004, the Federal Court acquitted Anwar because of the danger of convicting on the uncorroborated evidence of an accomplice despite believing that the sexual acts did take place.

To say that the Evidence Act 1950 does not require corroboration in sexual cases is akin to saying that all rape victims must be telling the truth even if they have an incentive to lie. Even if it is a rule of practice, the danger of not having corroborative evidence far outweighs the temptation to do justice to the victim simply on the evidence of the complainant alone.

Was the DNA obtained corroborative evidence? Why did the investigating officer seal the exhibits and then open the envelope to label the exhibits?

The inspector-general of police’s standard operationing procedure stipulated that the exhibits be marked first before they are sealed. Why was the opposite done here?

The credibility of the investigating officer himself was in doubt because of his slack and unprofessional handling of the evidence that contained the DNA. Leaving the samples at room temperature in a safe in a hot and humid environment for such long hours was certainly not conducive to the preservation of the evidence. But why did he do it?

Anything may be possible but clearly the probability of tempering even in the slightest degree is sufficient to break the chain of control so as to render the evidence doubtful. This is not a fanciful presumption but a plausible conclusion.

If the sex was consensual the DNA evidence means nought. Because the DNA from the semen would still be present in the anus or mouth depending on which orifice was used during the sex act.

The benefit of the doubt must go to the accused and the burden never shifts to the accused to prove his innocence. Beyond a reasonable doubt means being sure and not an absolute certainty but definitely not a high degree of probability. The latter implies a standard of proof slightly higher than on the balance of probabilities.

The evidence against Anwar was not overwhelming and neither was it conclusive to warrant conviction. The sentence was also manifestly excessive since the offence did not involve force or violence.

Since 1957, only seven cases have been prosecuted for sodomy of which two involved Anwar. It is not a common crime but like all sexual offences notorious to prove and yet in Anwar’s case the prosecution has succeeded against the odds which itself is a testimony to the brilliance of the lead prosecutor who may aspire to be the Crown’s principal law officer in the near future.

The victim has rights but so too does the accused. Human factors are involved that may justify or mitigate the conviction and sentence but the presumption of innocence and the imperative to do justice without fear or favour must permeate the decision making process.

Criticism of judicial decisions or the decision making process should not be equated with contempt or sedition even if robust provided the comments are temperate, reasoned and justified. Respect for the courts and judges is the cornerstone of the rule of law and of any democratic society that propounds freedom and justice.

But decision-makers who take the seat of judgment must leave their prejudices, beliefs and self-interests behind, be accountable to God and their conscience and be open to public scrutiny and criticism. Only then can justice and truth prevail.

* Gerard Lourdesamy is a practising lawyer for the past 22 years.