Malaysia: Hearing set for Anwar Ibrahim 'Sodomy II' trial

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The Star

Opposition leader Datuk Seri Anwar Ibrahim failed in his bid to get a stay of his sodomy trial and the hearing proper is now set to begin on Wednesday. In rejecting the stay application on Tuesday, High Court judge Justice Mohamad Zabidin Mohd Diah said there were no special circumstances to warrant a stay of the sodomy trial. “I find that there is no special circumstances in the law of proceedings (shown by Anwar) to grant a stay. The trial will proceed,” he said in his ruling in a packed courtroom.

The sodomy trial is set to begin at 2.30pm on Wednesday pending the outcome of the meeting of both parties with Court of Appeal president Justice Alauddin Mohd Sheriff at 9.30am in Putrajaya upon a directive from Chief Justice Tun Zaki Azmi.

The PKR adviser applied to the High Court to stay the trial until final disposal of his appeal at the Court of Appeal over his failure to strike out his sodomy charge.

Anwar, 63, claimed trial to sodomising his former aide Mohd Saiful Bukhari Azlan, 25, at Desa Damansara Condominium in Jalan Setiakasih, Bukit Damansara between 3.01pm and 4.30pm on June 26, 2008.

On Dec 1 last year, Justice Mohamad Zabidin ruled that the findings of a medical report, which suggested that there was no penetration, could not be the basis for the court to quash the sodomy charge and that it should hear the testimonies of the prosecution witnesses first.

At the stay application Wednesday, Anwar’s lead counsel Karpal Singh submitted that the court has the jurisdiction and power to stay proceedings pending the appeal.

Karpal said Anwar had filed a notice of appeal to the Court of Appeal on Dec 10 last year over his failure to strike out the sodomy charge.

Anwar's former aide Mohd Saiful Bukhari Azlan at the KL High Court on Tuesday.

Karpal argued that if the trial proceeds as scheduled and subsequently the Court of Appeal allowed Anwar’s appeal, then the entire trial would become nugatory.

He said substantial public funds would have been expended and hardship caused to the many witnesses, both local and abroad, who would have had to attend the trial which is fixed for 17 days.

“There is no certainty that the trial will be concluded in 17 days. It would be in the public interest to ensure such an eventuality does not arise,” argued the veteran lawyer.

Karpal said Anwar’s appeal to the Court of Appeal has merits, adding that the charge should be set aside as it is frivolous, vexatious and an abuse of the process of the court.

“In the interests of the justice, the appellant (Anwar) should be given ever opportunity to exhaust his right to appeal to the Court of Appeal against the order of Dec 1 last year,” he said.

Karpal submitted that the sodomy charge could not be sustained because the medical report dated June 28, 2008 by Pusrawi Hospital suggested that there was no penetration.

Karpal said Mohd Saiful had gone to Pusrawi Hospital on June 26, 2008 for an examination and he had alleged he was “assaulted by the introduction of plastic into the anus.”

He said Mohd Saiful was examined by three doctors from the KL Hospital and that their medical report also did not add to the conclusive findings on penetration, which is an important element to prove the sodomy charge against Anwar.

“Two clinical findings did not suggest any penetration, which is a fundamental element of the charge. What is the purpose of calling the prosecution witnesses to testify when two medical reports have taken away the factual matrix of the sodomy charge?

“How can the complainant be accepted as a credible witness?” he said.

He said there was various special circumstance for the court to grant a stay, which included the reputation of his client.

However, lead prosecutor Solicitor-General II Datuk Mohd Yusof Zainal Abiden submitted that it was “trite law” that the court has the absolute discretion whether to grant a stay or not.

Deputy Public Prosecutor Mohd Yusof said Anwar had to show to the court the special circumstances in order for it to grant the stay, and that it was wrong to discuss the merits of the case at this stage.

He said Anwar had failed to show the court how his appeal would become nugatory if a stay is denied him.

On the Pusrawi medical report, DPP Mohd Yusof said it was the matter of handwriting of the concerned doctor and that it was not meant to be “plastic” that was written in the document, which required the court to hear the evidence from the doctor.

Meeting tomorrow
Earlier Tuesday, Justice Mohamad Zabidin had allowed a request by Karpal to adjourn the proceeding until until 2.30pm to get an early date for the hearing of a review application.

However, Chief Justice Tun Zaki Azmi was not in his office Putrajaya to hear the review application, and instead asked Court of Appeal president Justice Alauddin Mohd Sheriff to meet both parties also on Wednesday to set a date to hear Anwar’s review application against the Federal Court ruling last Friday which denied him access to key documents he sought to prepare his defence.

At the start of the court proceeding at 9.36am, Karpal said the defence team and DPP Mohd Yusof Zainal Abiden would be meeting the Chief Justice Tun Zaki Azmi in Putrajaya for the purpose.

“It is very important that the documents are supplied to us.

“We want to exhaust our final avenue to get the documents. Give us the opportunity to see the Chief Justice, we will come back at 2.30pm, where Your Lordship will be bound by his order,” he told the court.

Karpal, however, said he would proceed with the stay application to adjourn the trial proper in the High Court should the Chief Justice reject their request.

Last Friday, the Federal Court unanimously upheld the Court of Appeal’s ruling and denied Anwar access to the key documents he sought.

The three-man Bench of the apex court -- Chief Judge of Malaya Justice Arifin Zakaria and Justices Md Raus Sharif and Abdull Hamid Embong -- ruled that prior to the start of the trial, Anwar was only entitled to documents and materials pertaining to the charge, which had already been provided to him.

The Bench ruled that at this pre-trial stage, a roving fishing enquiry for evidence was not permissible.

Lead prosecutor DPP Mohd Yusof said he had no objections for the brief adjournment based on the defence’s assurance to proceed with the stay application at 2.30pm.

Justice Mohamad Zabidin then granted the adjournment for the stay application and the trial proper.

Speaking to reporters later, Anwar’s lawyer Sankara Nair said he had filed the review application at the Federal Court registry at 8.30am Tuesday.

“We will be meeting the Chief Justice to get an early date for the review application, and to get an order for the stay of proceedings,” he said.

In the review application filed Tuesday, Anwar claims that the Federal Court had erred in law in holding that the ruling of the High Court in granting him access to documents and materials was a final order.

“The Federal Court in review must put right what is obviously wrong, to ensure a fair trial,” Anwar said in his affidavit to support his application.

He added that injustice had been done to him, and that he would be “severely prejudiced” should he be denied the material and documents he claims are vital for the preparation of his defence.

“I respectfully state that I have made out an exceptional case for the court to act as the decision of the Federal Court has occasioned an injustice which needs to be rectified and prevented,” he said.

Anwar arrived at the courtroom at 8.59am accompanied by his wife Datuk Seri Dr Wan Azizah Wan Ismail and his three daughters -- Nurul Izzah, Nurul Iman and Nurul Hana.

The PKR adviser shook hands with Selangor Mentri Besar Tan Sri Khalid Ibrahim, DAP adviser Lim Kit Siang, Bar Council president Ragunath Kesavan, and Kelantan Mentri Besar and PAS spiritual leader Datuk Nik Aziz Nik Mat.

The Opposition leader also joked with foreign representatives: “After 11 years (since his first sodomy trial in 1998), I don’t know how to get inside the dock.”

He also teased a court police officer, asking him why he looked “so tense.”

Over 30 local and foreign reporters were screened using metal detectors at 8.28am while six bomb squad officers checked the courtroom earlier before allowing the people into the public gallery.

Also present were Saiful’s father Azlan Mohd Lazim and former Health Minister Datuk Chua Jui Meng. Lawyer Zamri Idrus is holding a watching brief for Saiful.

An unidentified elderly man created a stir when he started shouting profanities in the courthouse lobby.

He was taken aside by a security guard after five minutes of screaming and then fainted.

A group of PKR supporters were seen attending to him and he was subsequently taken for medical treatment.

Anwar is being charged under section 377B of the Penal Code which carries a maximum 20 years’ jail and whipping, if convicted.

The sodomy trial was originally set for Jan 25 but was postponed to today pending its decision whether to allow Anwar access to documents from the prosecution to prepare his defence.

In addressing the crowd, Anwar questioned the lack of evidence in the case adding that he was prepared for the trial to begin on Tuesday but with the documents that he had applied for his defence.

Meanwhile, PKR strategic adviser Tian Chua, in hinting that the party might hold demonstrations, said it wanted to show the country that the “rakyat (people) are with Anwar in the spirit of solidarity.”

Published: Tuesday February 2, 2010 MYT 9:52:00 AM
Updated: Tuesday February 2, 2010 MYT 6:53:27 PM

By M. MAGESWARI, LISA GOH and NURBAITI HAMDAN