Monday, February 08, 2010

ANWAR-THE VICTIM OF OVERZEALOUS PROSECUTION

BY : MOHAMED HANIPA MAIDIN

I have been practising as a criminal lawyer for almost 16 years. I have considerable experience defending accused persons who were being charged for sexual related crimes. My experience tells me that the prosecution will never charge a person for an offence of rape or sodomy if the medical evidence is not favourable to them. It is almost an accepted rule of practice or a legal norm, as far as the offence of rape or sodomy is concerned, medical evidence operates as oxygen to the prosecution.

It seems to me that such a practice is no longer adhered to in the current ongoing trial of Anwar Ibrahim. When the accused person is Anwar Ibrahim the rule of game is suddenly and drastically changed. When Anwar is charged the prosecution no longer seems to gauge the strengths of its case on the available evidence they have. When Anwar Ibrahim is tried the prosecution will, come what may, happily proceed with the trial regardless whether it has fragile evidence or no evidence at all against him !!

The only crime Anwar committed in this case is for having the name, Anwar Ibrahim.

I believe that if another person by the name of Ibrahim Anwar or any other Ibrahims allegedly sodomised Saiful the prosecution would not charge such a person when provided with the medical report prepared by doctors in Pusat Rawatan Islam ( Pusrawi ) and Kuala Lumpur General Hospital respectively.

Both reports, as I was told by lawyers in Anwar’s legal team, contain a very damning evidence against the prosecution in that they unequivocally state that there are no visible signs of penetration of Saiful’s anus. As far as the report of the Kuala Lumpur General Hospital is concerned, it was duly signed by three doctors. So what the prosecution have in their possession are the reports certified by four doctors ( one from Pusrawi and three from KLGH ) apparently dismissing the prosecution’s theory that Saiful was ever sodomised by Anwar.

People may ask why the AG, despite such a damning evidence against the prosecution, is still adamant, and not withdraw the charge against Anwar?The reason is pretty obvious, that is the accused person is Anwar Ibrahim. When Anwar Ibrahim is tried the prosecution will not care even with the existence of a hundred medical reports exonerating Anwar Ibrahim of any sexual offence.

To the layman, this question may crop in their mind. Is the medical evidence really significant in Anwar’s trial ? The answer to that is a resounding yes. As I have indicated earlier the medical evidence is oxygen to the prosecution’s case. The prosecution case dies the moment oxygen disappears or malfunctions.

It is a rule of prudence, as the lawyers call it, in any sexual related crimes, the evidence of the complainant per se is legally insufficient . Such evidence must be corroborated by other independent evidence.

Translated into Anwar’s trial, Saiful’s evidence alone is not sufficient to convict Anwar. His evidence must be corroborated. Of course a corroboration is not needed for all crimes. But in sexual offences, corroboration is highly significant in order to support the factum ( act ) of the alleged sodomy.

Why corroborative evidence is necessary in sexual related cases ? The legal practitioners say such evidence is needed because of the nature of such offences. In any rape or sodomy case it is relatively easy to allege that a crime has been committed by such and such person but it is on the other hand difficult for any person who is being charged to such offences to disprove such an allegation.

We can see clearly even before the court passes any verdict on Anwar, judging from the media coverage which appeared in Utusan and other BN’s controlled media, Anwar is as good as being found “guilty” by these so called juries. The media coverage was so vicious that one wonders whether Anwar’s, or for that matter, his family’s dignity brings any value to this irresponsible media.

The law says if you accuse somebody of committing a sodomy against you the law requires you to furnish corroborative evidence to support your allegation. That is why even in Islamic criminal law if a person is charged for sodomy, the prosecution must bring four witnesses who really see the actual penetration. That shows Islam also takes into account corroborative evidence.

And in Islam the standard of proof in sodomy case is very high indeed that is the prosecution must prove its case beyond any shadow of doubt, and the present standard of proof in civil law which is only beyond reasonable doubt. Thus in Islam any iota of doubt must be ruled in favour of the accused based on the maxim that “ the offence of hudud is withdrawn whenever iota of doubt is present ” . Islam holds the view that it is much wiser for a judge to err in acquitting 10 guilty persons rather than to err in convicting even one innocent person !!

In sodomy , like a crime of rape, the essential element which needs to be proven by the prosecution is the act of penetration itself. In Islamic law the same element also needs to be established by the prosecution in certainty.

Now how is the prosecution able to prove the element of penetration if they do not produce the medical reports/evidence? And how are the medical reports in Anwar’s trial useful to prosecution if they clearly say no visible signs of penetration to Saiful’s anus. The medical evidence is supposed to corroborate Saiful’s evidence but apparently in this case the same medical reports in fact exonerate Anwar Ibrahim. The rule is so simple : no penetration no prosecution. But the AG seems to hold the view that yes, no penetration but mind you we still have persecution to do!!

It is beyond question if Anwar is tried under the Islamic law, the charge, as it is presently framed against him, will never see the light of the day. Seeing the oral testimony of Saiful so far one cannot avoid to jump to the conclusion that it was a groundless or trumped up charge.

The AG should exhibit a high level of professionalism and integrity in the Anwar’s case. Intellectual honesty dictates that the prosecution should withdraw the charge against Anwar Ibrahim. Period. To prosecute a person in the absence of credible evidence is definitely tantamount to a prosecutorial misconduct and wastage of public funds.

The day that AG becomes the tool of the crooked politicians should have passed after the election tsunami in 2008.

13 comments:

fazilogic said...

If u said u r one experienced lawyer in sexual case, why did you not wait for the evidence in Anwar's case adduced in Court? Why did u just accepted whatever said by Anwar's lawyers behind the Court?

And if u r really experienced in such cases, why didn't Anwar hire u in his defence team?

aja49 said...

The whole world can see that it is a trumped up case right from the very beginning. There exist so many unprofessional and false dictates on the part of the prosecution.
It is a clear case of political desperadoes in control of the judiciary and prosecution to ensure that Anwar Ibrahim must be put behind bars for good this time.

He cannot be allowed to lead the country at any cost come the next GE. It is the unending fear, that all the misdeeds and felonies of the present government and its politicians thus far would be brought to justice should BN be voted out in the next GE, that compels this trial to prove Anwar Ibrahim guilty by hook or by crook.

wild said...

Dear hanipa,

It is a well known fact that you are not on the A list of criminal lawyer in the country.

There could be so many reaosn why there is no tear mark, maybe the dick is small or smaller then constipated shit.

In the old days for constipation they used coconut oil to lubricate the ass hole but now days there so many product in the country such as KY Jelly,Vaseline,durex and even MOBIL 1 if the need arises, who knows.

That is the question who knows, and to know, the trial should proceeded only then we can come to the conclusion whether it is a sham or shame.

As a Lawyer you should know that one should not to jump to conclusion.

They way some people comment as if they were there peronally witnessing the act/non act commited.

To Be soomised or Not To Be Sodomised That Is The Question and only the Court is the proper avenue to decided the question? not you the so call well known criminal lawyer.

tabloid SUARA RAKYAT said...

aku bilang blog mu bagus ..... bagaimana dengan blog-ku ????

adf55650 said...

Y\And You called yourself a lawyer? You passed judgemen before the hearing. Wow! that's a terrific example of how PAS operates legal procedures. Not a surprise though.

adf55650 said...

Mr. So-called Lawyer,
What do you say about the PR talk at Sri Siantan.
I bet you'd say it's not 'A Contemt of Court' 'cos PR organised it.

adf55650 said...

Mr. So-called Lawyer,
What do you say about the PR talk at Sri Siantan.
I bet you'd say it's not 'A Contemt of Court' 'cos PR organised it.

aja49 said...

If the whole world sees this as a trumped up case then what can you say about the case. Would you say the world has jumped to conclusions.
The prosecution should not leave any room for just anybody to show that this is a lopsided case. If an ordinary person could see and criticize the way the prosecution put across its case with so many loose ends to be tightened up what more those from the legal profession? It is the prosecution to be blamed for putting up such a shabby evidence that can be criticized from all angles.

adf55650 said...

Mind explaining how the news gets to the outside world? Isn't it from PR itself? So why bother say the world has an impression that the case is lopsided.

The same as Anwar keeps telling his people the prosecution is always delaying justice but who keeps on postphoning the hearing?

As to what the So-called Lawyer wrote, according to Islamic Law the prosecution has to bring in 4 witnesses to prove Anwar's guilt or innocence, so I suggest that all those found guilty of rapes and murder should be released immediately. This is because I'm pretty sure none of them has brought along 4 witnesses during the crime in order to be convicted.

Islamic or Quranic Laws are written not in the same way as Harakah, my so-called lawyer. We are given the liberty of interpretaton. Allah has granted us brains. As a lawyer, you should've been well-versed with physical and circumstantial evidences, and so is DNA.

Rahimi said...

i dont think u are a lawyer or a politician.

in a legal perspective, legal man would not like to come into conclusion if it just a mere hearsay. He would only conclude when the evidence come to his eye.

in a political perspective, it will be good for anwar if the case proceed without concrete evidence from prosecution team particularly from medical report. Anwar will gain a huge support because of this.

But i dont think government is too stupid to bring the case without concrete evidences.

adf55650 said...

Well.....I've saved this post of yours for later references should you be on Anwar's defense team.

I think this wlll be good for credentials.

mat penang said...

The fact is no anal penetration yet the prosecution case still continue, it is clear that this case is politically motivated.

Another damning evident of political motivation is that the 'victim' went to meet PM a few days earlier that the date of 'crime' committed.

Any we will witness that the 'goalpost' will be change a few times during trial to ensure that Anwar to convicted. This happened during the first sodomy trial and will definitely also happen during this second sodomy trial.

adf55650 said...

Which report says no penetration? Pushrawi has not issued any report. It was cleared that the report issued by Raja Petra was false. If it was valid why even Karpal Singh didn't dare put it as an evidence?

It seemed that the phrase 'no inspection' was changed into 'no insertion' on purpose. Only for short-sighted brains like yours.

Pushrawi only issued a note so that Saiful could refer the case to a government hospital as it was a crime.

Anyway who is Raja Petra? He seemed to be everywhere whenever a cime is committed. A Batman or badman?

And who is Anwar? If you people really care about rapist, sodomist and other perverts why con't you all fight for thousands of similar cases. Are they all politically motivated?

A crime has been committed and there is nothing political about it.

Only Anwar politicizes his case because he knows he has a lot of stupid followers like you.