Rationale of Judge’s decision should be transparent

One foreign correspondent was focusing his story on Anwar’s reaction when the judge dispensed his judgement of Anwar’s sodomy case. He saw Anwar to be completely surprised by the acquittal.

The acquittal was a surprise to the Gerakan Bebaskan Anwar 901 that they may have forgotten of the three bombs set to explode when the crowd is supposed to be in the midst of frenzy protesting to an expected guilty judgement.

Both sides were surprised with the judgment.

However, what is most unbecoming is Anwar’s sudden change of opinion of the Malaysian judiciary system. Since he launched his 901 nationwide tours on December 27th, he, his family members and pro-Anwar Pakatan leaders including pro-Anwar bloggers were criticising the judiciary system.

Conveniently, his immediate remark upon his acquittal was that the judiciary system is moving towards greater freedom.

Within less than 12 hours after his last ceramah in Kg Pandan, which he attacked the judiciary system, there had been too few or most likely, no changes in the personnel of judges, of judges, prosecutors and lawyers operating in the judiciary system.

It is likely to be the same system that sentenced Dr Khir Toyo to one year imprisonment for buying a price-justified cheaper house one week ago that Datin Seri Dr Wan Azizah Ismail described as a set-up to sentence Anwar as guilty.

By sentencing Khir Toyo, she claimed the judiciary system would be seen as fair for sentencing a Barisan Nasional leader thus there is no issue of party affiliation when the decision against Anwar is guilty.

Thus, how could the judiciary be any better or any worse after his acquittal? That is the hypocrisy on Anwar. Perhaps, it is a normal hypocrisy of politicians.

The written judgement of judge, Dato Zahidin bin Mohd. Diah, has yet to be available to enable the learned section of the public understand better the basis of his decision. But increasingly many, including the defence lawyers of Anwar, are surprised at Anwar’s acquittal.

Forget the conspiracy theory that judges can be manipulated by politicians.

Leave aside unsubstantiated claims that Anwar’s release was due to the effort of Senator Ezam Mohd Nor, who was brought to see the then Dato Seri Abdullah Badawi (now Tun Dol) by Khairy Jamaluddin in London, to plead for Anwar’s release to enable him to have his so-called back operations in Munich.

Do not even believe that Tun Dol would release Anwar because he refused to inherit Tun Dr Mahathir’s burden and fixed two MCOBA friends of Anwar on the federal court to hear and say nay.

Court decision has to be based on legal rationale of evidences and sound arguments and not of politics and conspiracy theories. Legal rationale can vastly differ from common people’s common sense, speculation and simplistic conclusions.

Until the written judgement is made known, the public have every right to seek answers for every unanswered questions that arise from newspaper reports on the judgement and past court proceeding.

The prosecution’s case is mainly based on Saiful’s testimony in court and forensic DNA evidence. While there are other supporting evidences and testimonies, it is not the main one.

As we understood it, there are other evidences and testimonies that could be introduced but the prosecution team felt it is a straight forward case and sufficiently water tight. There is no need to give room for Anwar to goreng (manoeuvre) into other possible conspiracy theories.

If not for Anwar’s court antics and judge’s high tolerance to his 69 postponements, the trial should not have taken 3 years and 6 months but only 4 months or as long as Khir Toyo’s trial.

Thus, Anwar will still be living with the perception of guilt for his delay tactics, his one week hiding in the Turkish Embassy upon Saiful’s police report, and his reluctance to perform the mubahalah (swear innocence in a Masjid).

The PKR boys on the ground are claiming Anwar had always maintain his innocence as their spin (not answer) to counter any doubts against Anwar acquittal that is still pervading.

The opposition kept saying about maturing politics but still resort to non-factual, simplistic spins and even, childish answers to address issues. But they alone should not be blamed since all political parties practice such communication method to the simplistic and factually adverse public.

There is no way Anwar would have been that confident of his innocence. Not only due to the actions mentioned, Anwar would not have problem being sworn witness in court to be cross examined by the prosecution team to give credibility to his in-court comments.

Anwar would have, without hesitance, voluntarily given his blood sample as DNA specimen to disprove the DNA claimed to be from Saiful’s anus are his. Off course, he would provide it upon requesting certain “personal safety” measures.

Extract from The Star Online report yesterday described judgement basis as follows:

Justice Mohd. Zabidin Mohd Diah said that after going through the evidence, the court could not be 100% certain the integrity of the DNA samples was not compromised.

He said as such, the court was left only with Saiful's testimony, which was uncorroborated, and was reluctant to convict based entirely on this.

Until a written judgment is available to understand the judge’s rationale, the big puzzle on members of the public that ABTW had access to within the last 24 hours is why would the judge raised the issue of DNA evidence in his judgement, after he had called Anwar for defence.

The common reason associated with specimen integrity is usually tampering of specimen.

If our memory did not fail us, the defence lawyers had tried raise doubts on the DNA specimen using tampering of the specimen as issue when cross examining one of the Government Chemist, believed to be Dr Seah.

This was done when the prosecution presented their evidence. If it had been accepted by the judge, Anwar should not have been called for defence. After all, the case is built on only two main evidences - Saiful’s testimony and DNA proof.

Moreover, had there been any issue of relevance on the DNA sample, it would have been on use of DNA sample extracted from Anwar’s drinking bottle, toothbrush and towel while in the police lock-up.

The judge had initially rejected the DNA sample but upon application from the prosecution team, he had reinstated the samples. Thus there is no more issue.

During the defence session, two so-called DNA experts were brought in by Anwar from Australia, namely Associate Prof. David Wells and Dr Brian McDonald. Both had aggressively attempted to negate all aspects of the DNA proof.

Upon cross examination by the prosecution team, one had their credibility as expert seriously in doubt and another had their testimony dissected to pieces. That’s the reason the testimonies of the experts were not given prominence in the wrap-up by the defence team.

In fact, when Anwar’s former spine surgeon, Dr Thomas Hoogland was invited to the witness stand, the integrity of his medical practise were now in serious doubts due to happenings at the Alpha Klinik, Munich.

Hoogland was brought over for Anwar to make a desperate claim of penile dysfunctional. But who would believe with his China Doll sex video at large on the Internet.

As far as the court proceeding as remembered, there were no more problems with the DNA proof. It explains for the need of judges to help the public answer this doubt.

Although judges tend to maintain keep audibility in their court within the confine of only the lawyers, for sake of the judicial integrity, they are responsible to make their judgement and court proceedings in their court transparent to the public, or at least within the legal community.

The written judgement of the judge will be awaited with bated breath by the knowing public. Not only because it is unbelievable to some that Anwar can be scot free, it will mean other sex offenders with DNA evidence pointing squarely at them, will also get away free.

That’s bad news for public safety, especially since Anwar’s Pakatan controlled Selangor and Penang, criminal-linked entertainment outlets are mushrooming even in housing areas. Sex related criminal offenses are on the rise also. So watch your back ...

The Government should assist to help the public understand the judge’s decision. Otherwise, the public may see the Government or Anwar’s side pressure may have had undue influence on the judge’s decision.