FAC News - Friday, April 4, 2003 9:16 AM

Silence is consent

Anwar Ibrahim’s appeal hearing against his sodomy conviction and nine-year jail sentence resumes on Monday, 7 April 2003. A week after that; 14 April; Anwar would have completed his first sentence for corruption after a one-third remission on the six-year sentence.

What are Anwar’s chances of coming home on 14 April once he completes his first sentence? Will he win the appeal against the second conviction?

Are you asking legally or politically? Legally, he should be home for dinner in about a week’s time. Politically, he may not even be home for Christmas; and Anwar is a political prisoner.

And why do I say this?

You have to follow the five days of submissions by Anwar’s lawyers, which started on Monday, 24 March 2003, to appreciate what is going on. And, most important of all, you MUST follow this Monday’s and Tuesday’s (7th and 8th April respectively) replies by the Attorney-General and Prosecutor.

Anwar’s lawyers have raised many pertinent issues that, to date, even after four years, have gone un-replied. We can only assume that silence means consent. Since the prosecution did not - and still have not - denied or rebutted the various allegations, then they must be true. And, if they ARE true, then Anwar must certainly be innocent and a victim of trumped-up charges.

…which means, if the appeal court that is currently hearing Anwar’s appeal is really a proper court and not a kangaroo court, then Anwar should be home soon. If not…well…you know the answer to that…

Let me take you through some of the allegations raised by the defence that have gone undisputed, un-denied and un-rebutted all these four years. These are all permanently on record as transcripts of the two previous trials, so these are hard facts and not hearsay. And I also invite you to follow the proceedings of the appeal hearing next week to see whether the prosecution replies to these issues, and, if they do, whether it is a credible reply.

1. No corroborating evidence

Anwar was alleged to have sodomised his Indonesian-born adopted brother, Sukma Darmawan Sasmitaat Madja, and his one-time speech writer, Dr Munawar Ahmad Anees. Both were sent to jail for six months for “allowing” Anwar to sodomise them.

Anwar, however, was never arrested, charged or convicted for the “crime’. This is a classic case of the “rape victims” being sent to jail while the “rapist” was never brought to book.

The two allege they were tortured into confessing and, since then, have retracted their confessions through sworn Affidavits. The Director of the Special Branch then, Said Awang, testified in court that such torture tactics are “normal police procedure” in extracting confessions.

In sex-related crimes, additional evidence such as witnesses and medical reports are required. Sukma and Dr Munawar, however, were convicted purely on the “strength” of their coerced confessions and with no other supporting evidence.

Since then, Sukma was sent for a medical examination and the doctor who examined him, Dr Zahari, testified in court that he found no evidence Sukma was ever sodomised. (Dr Munawar has since left the country and is residing in the United States). In fact, Sukma suffers from a unique medical problem - his anus is too tight and he has problems moving his bowels - so they had to operate on him to widen the passage to allow him to move his bowels.

The truth is, there is no way Anwar could have penetrated Sukma’s anus taking into consideration Sukma’s medical problem and, in fact, the doctor found no signs of Sukma ever having been sodomised. Sukma could not even let anything out of his anus, let alone allow something in.

This has never been rebutted by the prosecution.

The defence then asked that Azizan Abu Bakar, who Anwar and Sukma were alleged to have “jointly-sodomised”, also be sent for a medical examination to determine whether he had ever been sodomised. The prosecution admitted that there was still time to do so but they refused to have Azizan examined by a doctor.

This has never been rebutted by the prosecution.

2. The Attorney-General and Chief Prosecutor blackmailed Dato Nalla Karuppan

A prominent lawyer and one-time Bar Council President, Manjeet Singh Dhillon, made a serious allegation against the current AG, Abdul Gani Patail, and Azhar Mohamad, the Chief Prosecutor. The allegation is that they blackmailed Dato Nalla Karuppan and tried to extort fabricated evidence from him to use against Anwar.

They wanted Dato Nalla to testify that he had procured women for Anwar. First it was two women, then three, then four, and finally they asked him to say it was five. If he agreed to this, then they would reduce his charge under the Fire Arms Act. If not, he would be charged under the Internal Security Act, which carries the death sentence.

Dato Nalla, however, refused to do so though he faced the death sentence.

Manjeet then wrote letters to the Chief Justice and the then AG, Tan Sri Mohtar Abdullah, to complain about the conduct of his two Chief Prosecutors. He also filed Affidavits detailing the incident while Anwar asked that the two Prosecutors be removed from his case.

No action was taken and the two Prosecutors not only were not removed, but one was made the AG, and, now, both are still prosecuting Anwar in the ongoing appeal hearing.

In a related case, Zainur Zakaria, another lawyer, who was cited for contempt of court and given a three-month jail sentence for bringing this matter to the court’s attention, was acquitted by the Federal Court that ruled “there certainly was an attempt to fabricate evidence against Anwar”.

This has never been rebutted by the prosecution.

3. They tried to bribe an American to slander Anwar

Attempts to fabricate evidence against Anwar were not confined to Malaysia but also extended to the shores of the US as well. One such case involved Jamal Abder Rahman, an American citizen of Arab descent, who operates a limousine service in Washington DC and had a contract to provide limousine services to the Malaysian Embassy in Washington.

In September 1998, soon after Anwar’s dismissal and subsequent arrest, a Malaysian Diplomat, Mustapha Ong, asked Jamal to declare that he had procured women and young boys for Anwar. However, just like Dato Nalla, Jamal too refused though he was offered USD200,000 for his effort. Instead, he complained to the then Malaysian Ambassador to the US, Dato Dali.

Jamal then came to Malaysia to testify in court where the whole story was related.

This has never been rebutted by the prosecution.

4. Anwar’s alibi is as strong as the Rock of Gibraltar

First Anwar was charged for committing sodomy ‘one day in the month of May 1992’. Anwar then filed his Notice of Alibi under Section 402A of the Criminal Procedure Act to prove this could not be possible since the place he was supposed to have committed the crime, Tivoli Villa, was not built yet then.

They then changed the date of the charge to ‘one day in the month of May 1994’.

But then, the prosecution’s star witness, also the alleged ‘victim’, Azizan Abu Bakar, testified he ‘was never sodomised after May 1992’. Then he changed his story to ‘after September 1992’.

Again they had to amend the charge and, this time, they stated the date as ‘one day at 7.45pm between 1 January 1993 and 31 March 1993’, a period of 90 days. Then they asked Azizan to change his testimony by saying that if he had been ‘specifically’ asked, he would have testified that it still DID happen after 1992. Since they were not ‘specific’, that was why he testified he was never sodomised AFTER 1992.

Now Azizan’s testimony fit the charge.

Then, instead of the prosecution having to prove that Anwar WAS at the Tivoli Villa ‘one day at 7.45pm between 1 January and 31 March 1993’, Anwar instead had to prove he was NOT there. This is certainly a departure from norm where, in a criminal case, the prosecution is supposed to prove your guilt and not the accused having to prove his innocence.

Nevertheless, Anwar managed to provide his alibi and account for the entire 90 days. Anwar proved he was never near Tivoli Villa at anytime from 1 January to 31 March 1993.

The prosecution, however, said that Anwar’s alibi is a “sham alibi”. The prosecution claims it has a record of Anwar’s movements and whereabouts, both in and out of the country, those entire 90 days. These movements are recorded in the police diary.

But the prosecution never produced this diary in court even when asked to do so. Earlier this week, the prosecution said they have never seen the diary and do not know where it is.

The diary has since conveniently disappeared and the prosecution’s so-called “solid” evidence against Anwar has vanished into thin air.

Anwar has proven he was never near the scene of the crime the entire 90 day and this has never been rebutted by the prosecution.

The judge, in his judgment, said that Azizan’s testimony and credibility are “as strong as the Rock of Gibraltar” though he may have made five conflicting statements at different points of time. The judge added that Azizan has satisfactorily explained these inconsistencies.

The judge then said that Anwar had only accounted for 89 of those 90 days. There was still one day, 19 February 1993, that Anwar could not account for.

But Azizan testified that the sodomy act DID NOT occur on a Friday. And 19 February 1993 was a Friday. So Anwar’s alibi is now complete.

The fact is; it is Anwar’s alibi that is as strong as the Rock of Gibraltar and the prosecution has never torn this alibi to pieces. Yet Anwar was convicted and sentenced to nine years jail for “a sodomy act that happened one day at 7.45pm between 1 January 1993 and 31 March 1993”.

The above are but some of the issues that have gone un-replied, uncontested, and which the prosecution has not rebutted. And there are many more.