ANWAR NAKED BUT FREE

IRRATIONAL EXUBERANCE?

The anticipated optimism and relief in opposition camps following Anwar Ibrahim’s acquittal on the criminal charge of sodomy is only overshadowed by the long dark shadow of the man’s sheer arrogance coupled with his repeated habit of putting his foot in his mouth.

Anwar’s response to his acquittal and his conduct throughout the trial and prior to it may have paved the way for a possible appeal by the Director of Public Prosecutions (DPP) or Attorney General of Malaysia against his acquittal.

Harry Fawcett of Al Jazeera, the nerve centre of the Soros led uprisings in the middle- east and elsewhere asked Anwar on his acquittal if he, Anwar,’ was surprised by the court’s decision to acquit him’. In his response, calculated and deliberate, Anwar did what he had done throughout the course of the trial. Anwar berated the judiciary in his response. He brought the particular judge who presided over his matter and who acquitted him into disrepute with his response and, Anwar claimed the judge was partial and unfair in the earlier part of his response.

Later on in that same interview with Al Jazeera he Anwar claimed the judge was ‘courageous in his decision’. Now which of the two views of the judge in Anwar’s opinion is a fair description of the judge? Difficult to determine? No. And why? Because Anwar has always played the role of Arthur then Martha when it has suited him destroying his personal credibility in the process.

THE COUP THAT WASN’T

What is clear is that Anwar now as he always has, sees himself as being above the law. Anwar sees himself as a special case. Supported by Paul Wolfowitz, the discredited neo con, Madeline Albright, the rabid anti-Muslim former US secretary of state and the failed presidential hopeful now environmental  campaigner Al Gore all believe him to be.

“It was a surprise but I welcome the decision”. Anwar in his own words said he was surprised but that he nonetheless welcomed the decision (to acquit). Was this a slip or was he really surprised by the acquittal? If he was surprised why was he surprised?  Did Anwar really commit the offence of sodomy and get away with it on a technical flaw?

Early medical evidence appears to support the allegation against Anwar that Saiful had been sodomized. : Or was Anwar saying he was surprised by the acquittal because he did not expect the judge to be fair, competent or to act on the evidence and the law before him? Either ways Anwar’s responses appear to be saying a lot more about Anwar than the decision does about Anwar and the government’s case.

Anwar refers to having “distributed all medical evidence to the court of public opinion?”  and in the same breath to Fawcett he  thanks the “International media including Al Jazeera and friends in the west and Turkey for their continued support “ and ‘for making appeals on his behalf.’  Fawcett responds: “Just to clarify we have just been reporting we have not been making those appeals”.

AN ACQUITAL IS NO “NOT GUILTY” VERDICT

Interestingly many Malaysian commentators clearly demonstrating an ignorance of the law and how it operates have reported  with headlines such as  “Anwar not Guilty” and in commentaries  appear to be saying ‘Anwar was found not guilty’ of the offence of sodomy. Some then proceed to attempt a political/ legal analysis of the outcome of Anwar’s sodomy trial with outrageous assumptions to support individual political positions on the matter.

WHAT IS AN ACQUITTAL AND WHY DOES A JUDGE ACQUIT?

An acquittal is not a finding of “not guilty”. Far from it.

Simply put and in layman’s terms it means this:

‘On the evidence laid before the court, on the much higher standard of proof of “beyond reasonable doubt” for the prosecution to discharge, as opposed to the “on the balance of probabilities” lower and civil standard of proof for a defendant (Anwar) to discharge Anwar was acquitted. An element of reasonable doubt sufficient for the court to decide a conviction on the higher standard may not have been possible’.

This is more a matter that goes to the prosecution’s failure to discharge its evidential burden. Theirs was a much higher burden of proof to discharge than what was required of Anwar. 

The decision is not necessarily a case of Anwar’s successful defence against the charge.  Anwar did not win this case . The prosecution simply failed to meet that higher standard required of it to prove its case against him. And that happens all the time everywhere. Any victory Anwar feels entitled to will be short lived. There will be an appeal if one examines the evidence.

IS ANWAR THEREFORE NOT GUILTY?

The judge in the exercise of his duty and his discretion in these circumstances did what was required of him. And that was to give the defendant, in this case Anwar, the benefit of doubt and to acquit.

This does not mean Anwar is not guilty of the charge as claimed by many of his supporters. A guilty or not guilty verdict can only come after a full trial of the facts and examination of evidence and witnesses in an open trial. That did not happen in this case.

What is not understood especially by lawyers in Malaysia commenting on this case is this. There is “a discretion in the hands of the judge to exclude evidence” in a criminal hearing or trial. There is “no discretion to include” evidence. It is another powerful tool in the arsenal of any competent lawyer advancing a defence in a criminal trial.

In R v Sang  the authority on the discretionary power of judges in this regard,the common law position is stated as follows:

(i)                  that a judge has a discretionary power to exclude relevant evidence if the prejudicial effect to the accused of the evidence outweighs its probative value to the case; and

(ii)                that a judge does not have a discretionary power to exclude relevant evidence because it is illegally or improperly obtained. The common law position in cases such as R v Maqsud Ali, R v Ashiq Hussain , Kuruma , Barker and Payne is preserved by section 82 (3) of the Police and Criminal Evidence Act 1984 (PACE) which provides:

“Nothing in this Part of the Act shall prejudice any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.”

The above line of authority is taken from the English Criminal Code and is persuasive if not binding in Malaysian courts which relies heavily on the English common law. If the specific case is not then at least the principles they have established are.

ANWAR ALL DRESSED UP AND NO WHERE TO GO

Anwar for all intents and purposes is a spent force acquittal or not. His alignment with Arun Gandhi the grandson of Mahatma Gandhi offers him no redemption.  Anwar is like a broken record reacting to the continued moral dilemma he faces with allegations of his sexual impropriety whether with women or with men.

He is not proactive. Anwar epitomises the character of a reactionary. He is easily baited and is unable to focus on the wider picture of policy which his party and allies in opposition are seriously deficient in.

Anwar has thus far like the rest of his mates in opposition failed to produce compelling alternative policies past the rhetoric of opposition slogans and street marches. There are no policies, there is no costing to his loose raft of promises which is no substitute to properly costed policies.

Regardless of the morality of his sexual preferences and the ongoing allegations against him, Anwar has demonstrated no credibility as a potential leader, as a man of any vision, substance or capacity to void a distraction. Anwar has allowed himself to be consumed with his personal problems, his personal vendettas and his grudges at the expense of his party’s advancement or the issues important to his constituents.

It has always been Anwar this, Anwar that and Anwar the other. Anwar’s jaunts abroad funded generously by his supporters and outsiders have been to promote Anwar, an Anti Mahathir campaign with only cursory regard to any meaningful change he promises to bring to a Malaysia under his stewardship.

BETRAYED BY HIS ALLIES KILLED BY HIS VICES

Anwar appears as tired as his wife by his side. It is she who appears to need some rest and relief form this thankless campaign full of nasty surprises to her,to  her credibility as a liberated woman and to her as mother, spouse and care giver to her family. How long can she defend Anwar against such allegations of infidelity and bi sexuality?

The latest revelation clearly showing Anwar in the company of a woman believed to be a prostitute and half dressed at that is hard to defend. And he hasn’t tried hard to defend it at all. Far from it he has allowed his many  supporters in blogsphere to pen invectives like graffiti on public toilet walls hurling abuse at government.

He may have his victories in court courtesy of shoddy legal work on the part of the prosecution. But the evidence keeps piling up against the man, especially with carefully timed and indiscreet disclosures and leaks by his so called allies who have been deserting him in droves. This appears to be part of the wider Ambiga and DAP strategy to use the man then pull the rug from under his feet at the opportune moment in the end to his detriment.

It appears that government has successfully targeted Anwar, however mean that may be perceived to be by some, knowing fully well the make up of the weaknesses of the opposition high command.

The opposition high command appears to be a collegiate of vanity, self centered and narcissistic to the core. If it is not Anwar it is his political shadow who has overtaken him and publicly (in private) and chastised him revealing the intention of others in his company ‘that he will never be alternative prime minister of Malaysia’.