Hold The Accolades!

by M. Bakri Musa

Now that Judge Mohamad Zabidin Diah has acquitted Anwar Ibrahim on his “Sodomy II” charge, there is no end of praise heaped upon the judge specifically and the system of justice generally. Prime Minister Najib was quick with his smug assertion that “neither politics nor politicians have any influence over the dispensation of justice.” Foreign governments too have been effusive with their praises. Some now brazenly call for Anwar Ibrahim to apologize for his earlier criticisms of the system.

Hold the accolades! This sordid trial reveals everything that is rotten with the Malaysian system of justice. This case should never have been prosecuted in the first place. That it was reflected the level or more precisely lack of professionalism on the part of these career prosecutors. As for the trial, there were many instances where the judge could have thrown the case out, as when the physical evidence was introduced. Now the learned judge used that as the reason for acquittal.

As for Anwar Ibrahim, he and his family are rightfully grateful for the verdict, but hold on to your apology. Forgiveness, yes, as he said recently; that is always praiseworthy. He rightly cautioned that one court decision does not a judicial spring make. Besides, there is still the monumental task ahead to clear up the mess, and not just in the system of justice. Najib’s much-ballyhooed “transformation” is a charade concocted by his exorbitantly-paid consultants.

Doing Away With Anwar

The decision to do away with Anwar was made a long time ago. In opting for this particular route, they had hoped that whatever the outcome Anwar would be irreparably damaged by the smear. How they misjudged! The public remains convinced that the charge was politically motivated, and crassly at that, right from the very beginning.

The tragedy here, apart from the agony and humiliation Anwar and his family had endured, is that a delayed-adolescent college flunkey desperate for his 15 minutes of fame was being exploited. They used the poor boy as a battering rod, pardon my metaphor, to do in Anwar.

There is only one possible redeeming value to Judge Zabidin continuing this trial in its squalid entirety, and that is to expose the pathetic lack of professionalism of not just the prosecuting team but also the other professionals involved. This included the police officers and crime investigators to the forensic scientists tasked with the crucial DNA analysis and the senior specialists who examined Anwar’s accuser.

Consider those medical specialists. They failed in their duty to inform and educate the court; they owed the court their individual professional judgment, not a committee report. Unlike paid experts, those government doctors were not beholden to the accuser or accused, only to uphold the truth. If they had doubts they should so inform the court. Likewise those chemists; before they performed the DNA analyses they should be satisfied of the integrity of the specimens. If they were forced to perform tests on specimens of questionable integrity, they clearly should have informed the court of their doubts.

Those specialists were based at the General Hospital Kuala Lumpur, an apex institution in the government’s healthcare system; thus presumably they must be the best. They should also have known that this was a very high-profile case and that their performance would come under global scrutiny. It should have been an opportunity for them to showcase their talent and professionalism. Instead the judge singled out the inadequacy of the physical evidence, as reflected in their reports and testimonies, as the reason for acquittal.

The only physician who had acquitted himself well was the foreign doctor who first examined the accuser. That doctor had the conviction to document clearly his findings and impressions without first having to “discuss” it with his superiors. That he had to flee the country afterwards reveals much about our system of justice.

If in his written judgment Judge Zabidin were to comment on the quality of the prosecution’s expert witnesses and address the performance of the prosecution, in particular the alleged gross breach of professional conduct where one member was romantically linked with the accuser, then I will not only take back my criticism but would praise the learned judge profusely. Then there was considerable wisdom in his letting the trial go through its entire course – to serve as a much-needed “teaching moment” for the nation.

At its most benign the alleged prosecutorial misconduct could simply be the case of a young man and woman with raging hormones. At its most sinister, it is “witness coaching” brought to a whole new low level. When that wild allegation first surfaced, the prosecution dismissed it, only to admit later that the alleged woman was only a “junior” and thus an inconsequential member of the team. Never mind that she was a lawyer, a fellow professional.

The prosecution was led by the government’s top lawyer, the Solicitor-General. He is a career civil servant, not a political appointee and thus, at least theoretically, immune to political pressure. Nonetheless he should have known that in this day and age, the charge of sodomy is patently laughable. Major jurisdictions including the US and Canadian Supreme Courts have decriminalized the act except where it is non-consensual. Heck, even the Chinese Supreme Court has ruled similarly!

Even in Malaysia that statute has rarely been invoked. The only time it was used was in 1998, and the victim was again Anwar. That conviction was subsequently overturned on appeal, but not before he was incarcerated for six long years. If the Solicitor-General had invoked sexual harassment charges instead, that at least would have highlighted an all-too-common problem.

Even if the physical evidence had been compelling, recognizing that this was a high-profile case with all the political implications, and aware of the poor reputation of the judiciary in the eyes of the public, it would have been prudent to appoint an independent prosecutor. That would remove any suspicion of political influence. That the Solicitor-General did not again reflected the caliber of his judgment. The irony is that this case was decided soon after he submitted his early optional retirement!

The verdict not withstanding, many unanswered questions remain. Najib has yet to explain why he met this confused young man just days before he filed the complaint against Anwar. If, as Najib intimated, that they were discussing a scholarship, I can suggest a few other much more talented Malaysians now at top universities who are more deserving of such attention.

Najib and the other UMNO leaders are forever proclaiming that Malaysia is an Islamic state. In this case both the accuser and the accused are Muslims. Why not invoke the shari’a? They did not, for the obvious reason that had it been invoked, both accused and accuser would have to be charged as there was no element of force.

Far from being a turning point, this trial illustrated and highlighted how dysfunctional and ill-equipped our institutions and personnel are in the administration of justice. I predict two things: One, the judge’s written judgment would be long in coming; and two, he will not be bound for promotion any time soon.

As I suggested earlier, hold the accolades.