Technicalities are everything

ARCHIVES 2010

By MT Webmaster On May 15, 2010

However, from where I am sitting, the judge has already made up his mind to send Anwar to jail. So the evidence and Saiful’s testimony are not going to be the deciding factor. It is merely to provide the justification in sending Anwar to jail. It would be just to ‘legitimise’ Anwar’s incarceration.

THE CORRIDORS OF POWER

Raja Petra Kamarudin

Karpal Singh points to contradiction

The sodomy trial of Datuk Seri Anwar Ibrahim heard yesterday that the charge framed against him contradicted witness statements and court evidence given by his complainant Mohd Saiful Bukhari Azlan.

His lead counsel Karpal Singh argued that the charge under Section 377B of the Penal Code was for committing the sexual act with consent, while Mohd Saiful’s evidence in court and his witness statements implied an alleged offence under Section 377C for a sexual act without consent.

Karpal applied for Mohd Saiful’s witness statements recorded during the investigation of the sodomy case to be supplied to the defence for the purpose of cross-examination.

He submitted that the defence has the right to have the statements to study the possibility of impeaching Mohd Saiful.

“Mohd Saiful stated in his police report that the incident took place without his consent. He confirmed this when he testified in court on Monday and he alleged the same thing today (Tuesday).

“This is not an ordinary case. The attention of the court is being directed to the contradiction and the court has to determine the discrepancies and decide over this.

“This ruling by Your Lordship will be a prime order, which will be subject for appeal at the Court of Appeal.

“If we can prove that the witness lied in court then we can impeach him,” he said.

High Court judge Justice Mohamad Zabidin Mohd Diah then set today to decide if a copy of the statement could be given to the defence.

He said it was necessary for him to study the points raised by Karpal, who had contended that the issue of contradiction was being raised for the first time in Malaysian legal history.

Anwar, 63, claimed trial to sodomising 25-year-old Mohd Saiful, his former personal aide, at the Desa Damansara Condominium in Bukit Damansara on June 26, 2008.

Lead prosecutor Solicitor-General II Datuk Mohd Yusof Zainal Abiden said there was no basis for the court to direct the prosecution to provide a copy of the statements to the defence.

He said the Attorney-General had the discretion when deciding to frame a lesser charge against Anwar. — The Star

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Some of you who are following the Anwar Ibrahim Sodomy II trial may be wondering whether the Defence is making a mountain out of a molehill. After all, it is a mere technicality whether the sodomy, if it did take place, was or was not with consent. If the sodomy act did take place then who cares whether it was or was not consented?

Actually it does make a difference. Let’s look at another scenario. Say you are a Muslim man and the religious department (Pejabat Ugama) catches you in a hotel room with a woman who is not your wife. You and the woman would both be charged for khalwat and, if found guilty, both you and the woman would be sentenced to a fine, jail or whipping — or all the above.

But then the jail may be a couple of months and/or the fine a couple of thousands of Ringgit — and if whipping is included it would be ‘light’ whipping’, not the type of whipping you would suffer for serious crimes.

But let us say that you are a Muslim man who is caught in a hotel room with another woman who is not your wife and the woman alleges that you forced yourself upon her after tricking her to come to the hotel room under false pretences. Then this would be rape and you alone would be charged, not the woman as well like in a khalwat case, and if you are found guilty it would not be a mere couple of months jail and/or a couple of thousands of Ringgit fine. The sentence would be very severe indeed. And if you were whipped as well it would be ‘hard’ whipping that would rip the flesh from your body.

So you see, consent or without consent are very material issues. ‘With consent’ means both sex partners must be charged. ‘Without consent’ means that one is a victim so only the perpetrator is charged while the victim is not. And the punishment for the ‘without consent’ crime is many times more severe.

When I was detained under the Internal Security Act in 2001, I was immediately brought to the nearest police station, the Damansara Police Station, so that a police report could be filed. The arresting officer then asked one of his men to drive back to the place where I was arrested and check the spelling of the road name. The arresting officer explained that they must get the spelling of the road right because if there are any mistakes then I could probably get released if my family were to file a writ of habeas corpus.

Let me put it another way. Say I am arrested along Jalan Tunku Abdul Rahman and the police report states that I was arrested along Jalan Tengku Abdul Rahman. The small difference is between the ‘e’ and ‘u’. But then I was arrested along Jalan Tunku Abdul Rahman and not Jalan Tengku Abdul Rahman. That means the police report ‘lied’. And because of this ‘lie’ I would most likely win the habeas corpus and the court would release me from detention.

I have known people who have been released (discharged without their defence being called) for crimes that attract the death sentence because of such discrepancies. Say the person arrested was wearing a blue shirt but the arresting officer testified in court that is was a green shirt. That alone has seen people getting released on ‘false charges’. Or the arresting officer says he found ten kilos of drugs in your car but when the drugs were brought to court and weighed it showed only five kilos. That too can be a ‘false charge’.

So, yes, details are crucial. If I conned a bank out of RM1 million by falsely declaring certain things and by submitting forged documents that is a case of fraud. The AG can’t charge me for armed robbery involving RM1 million even though the sentence for both may be the same — and especially if the sentence for armed robbery is more severe than the sentence for fraud. And I also can’t be charged for criminal breach of trust like I would be if I had been the manager/employee of that bank and not just a customer.

When I signed my Statutory Declaration in April 2008, both the AG and IGP said I had signed a false declaration. The police then called me in for interrogation under a possible charge of signing a false declaration. The issue was: I had signed a false Statutory Declaration. But when they charged me in court they charged me for criminal defamation instead.

“What’s the difference?” you might ask. Actually it is a lot of difference.

First of all, I never denied signing the Statutory Declaration. It had my name and signature on it, my lawyer was present when I signed it, and I signed it at the Kuala Lumpur High Court. That means, from the very beginning, I had no intention in denying that I signed it.

Now, the government had two ‘legal’ options. One, they could admit that what I signed was true and then launch an investigation into what I signed. Second, they could deny it and then charge me for lying — meaning charge me for signing a false declaration.

If they deny it and charge me for signing a false Statutory Declaration then they must prove this. I need not prove anything. The government needs to prove my guilt of lying. All I need to do is to raise doubt and the court must give me the benefit of the doubt (the benefit of the doubt is always given to the accused). Furthermore, I would be allowed to bring my evidence or witnesses to court to support what I had signed (which, in the first place, was my strategy in signing that Statutory Declaration).

When the government realised it was walking into dangerous territory, it decided instead to charge me for criminal defamation. In a criminal defamation charge, the issue of whether what I signed is true or false no longer matters. The issue now would be whether I did or did not sign the document — and in this case I had already admitted that I did.

When they read the charges out to me I told the judge I refuse to respond to the charges. Why bother to respond since I have already admitted that I did sign the document? And I did not intend to now deny that I had signed it. So I might as well just not respond to the charges and then the court can do what it likes with me.

But the judge refused to accept my ‘no response’. He took my ‘no response’ as a ‘not guilty’ plea. I shouted at the judge and said that I did not plead ‘not guilty’. I told the judge I am not responding to the charges — which means the court can pronounce me guilty if it so wishes and then sentence me.

But the judge ignored me and insisted that I had pleaded ‘not guilty’ and that I should face trial.

So you see, while the AG may argue that it is within his powers and discretion what to charge you with, it does make a difference.

Now, say the Prosecution brings forward evidence to prove that Anwar Ibrahim did, in fact, commit sodomy. And, say, Anwar’s defence is that although he did commit sodomy it was done with consent. And, say, he can prove that it was with consent. Would Anwar still be sent to jail since the charge was for non-consensual sodomy? So Anwar committed sodomy. So what? The issue is, did he do so with or without consent? That would decide whether he gets sent to jail.

And if it were proven that it was with consent then would Saiful now also face charges for consensual sodomy? What we would see in the end is Anwar being freed because he did not force himself upon Saiful while Saiful would go to jail for consenting to sodomy.

Weird is it not?

Of course, if Anwar was only concerned with his freedom and not his reputation, then his legal team could focus on the consent or non-consent issue. Since Saiful said that it happened many times and in many countries all over the world, then this rules out rape and would raise the possibility that Saiful wanted to have sex with Anwar.

This, of course, is not an option, so the legal team would have to focus on the argument that it did not happen altogether and that the allegation is grounded on a political conspiracy. Then all the Prosecution has to do is to bring the ‘evidence’ to court and get Saiful to testify as to what happened. And whether this evidence is true or fabricated and whether Saiful is lying or not would depend on the judge.

And you want me to trust my fate in the Malaysian judicial system? No way, Jose!