In light of the ongoing Sodomy II trial, the following are some basics of the criminal justice system that we should be informed or even reminded of

(i) It is the job of prosecution to prove that the accused committed the offence. This is in line with the legal maxim semper necessitas probandi incumbit ei qui agit (translated: “the necessity of proof always lies with the person who lays charges”)

(ii) The defence merely needs to raise certain discrepancies regarding the case, and the accused would be acquitted, provided the court is satisfied that otherwise, the conviction would be an unsafe one

(iii) The prosecution needs to prove beyond reasonable doubt that the accused committed the offence. It is a higher burden of proof than that of civil law (i.e. on the balance of probabilities) because the liberty of the accused is at stake (in Anwar’s case, five years imprisonment or more)

Datuk Seri Anwar Ibrahim’s defence team led by former Federal Court judge, Datuk Seri Gopal Sri Ram started off well. They raised a myriad of questionable issues, thus casting a lot of doubt in the prosecution’s case

The first concerned Anwar’s alleged alibi. Sri Ram said that the defence did not pursue the alibi because the police had intimidated the main alibi witness, who is the owner of the condominium.

If indeed the accusation is true, it would further mar the already damaged reputation of our police force as such scare tactics would prevent Anwar from getting a fair trial (contrary to Article 10 of the Universal Declaration of Human Rights of which Malaysia is a signatory but has yet to ratify)

Secondly, there was no evidence of sexual penetration. This claim by Sri Ram was based on medical reports. If it can be conclusively proven that there was an absence of sexual penetration in the anus, there can be no sodomy.

However, the testimonies of expert witnesses tend to contradict one other, thus the difficulty in reach an absolute conclusion whether or not there was in fact sexual penetration

Next is regarding the lubricant. It was not mentioned in the police report made by Saiful and popped up for the first time during the trial. Perhaps Saiful forgot to mention it because he was traumatized?

Oddly enough, the lubricant was not on list of exhibits during trial and was even mishandled by the investigating officer who gave it back to Saiful instead of keeping it as evidence. Considering the controversy surrounding the lubricant, I am of the opinion that the lubricant shouldn’t be taken into account

Saiful’s credibility is undoubtedly questionable. He insisted that during the ordeal, some K-Y Jelly spilled onto the carpet. However, the police investigation revealed that no stain was found on the carpet. There’s clearly an inconsistency in his testimony

Besides that, Sri Ram pointed out the ridiculousness in which the underwear Saiful wore was washed but the latter’s anus was left untouched, hence preserving the DNA evidence. On top of that, Anwar’s semen was found on underwear not worn on the day of the alleged sodomy. I’m no conspiracy theorist but the possibility of the evidence being planted exists

Moreover, it was alleged that Saiful met with Najib and other police officials two days prior to the sodomy complaint. If indeed such a thing happened, even a reasonable man would wonder if something fishy is going on.

Moving on, let us consider the photograph of Saiful at Anwar’s house. The picture was taken a day after the alleged sodomy whereby Saiful and Anwar met up for a discussion and tea session. Which mad person would hang out the next day with the very person who unconsentually sodomised him?

Since Saiful admitted to being there, there is no question that the photograph was doctored or anything of that sort. Ergo, it is material evidence which should be admitted as it could very well affect the outcome of the case

It is interesting to see what prosecutor Datuk Seri Muhd Shafee Abdullah has up his sleeve. He will have to bring his A-game if he doesn’t want Anwar to walk out a free man at the end of this trial

The Federal Court needs to be constantly reminded that it is a court of law, and NOT a court of politics. Therefore, any political influence should be tossed aside. The courts are to decide without fear or favour!

According to Lord Hewart in R v Sussex Justices, ex parte McCarthy, “it [… ] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Therefore, the highest court of our land should only uphold conviction if and only if the prosecution successfully proves beyond reasonable doubt that Anwar sodomised his former aide, Mohd Saiful

* This awesome article also appeared at The Malaysian Insider, Malaysia-Today, and Malaysiakini