The ghost of 1998 is haunting the police probe into the fresh sodomy accusation against Datuk Seri Anwar Ibrahim.
Specifically, the circumstantial nature of the evidence brought before the court in 1998 – the elastic dates of the alleged offences; the less than performance of the main prosecution witness Azizan abu Bakar; the absence of conclusive DNA evidence and breaks in the chain of evidence – is haunting the fresh sodomy investigation.
And unless police investigators have conclusive proof that the Opposition leader sexually assaulted his aide, Saiful Bukhari Azlan, this case is not going to see the inside of a court room. Indeed, in all likelihood, the police are going to close the case and say no further action.
Neither the Abdullah administration nor the police can afford to charge Anwar with sodomising Saiful and drag him through a trial with only Saiful’s statement and medical report confirming that the aide had suffered trauma as a result of anal intercourse.
Not today. Not when more than 60 per cent of the population believe that Saiful’s police report is part of a political conspiracy to end Anwar’s political life. A quick poll by the Merdeka Centre also showed that the majority of Malaysians do not believe that the allegations of sodomy against the former deputy prime minister.
Not when many Malaysians still remember the dark days of 1998 when witness after witness were paraded in the wood-panelled court room at the Sultan Samad Building to give evidence that Anwar sodomised his driver Azizan one night at Tivoli Villas between January and March 1993. The former DPM was found guilty by then High Court judge Augustine Paul and the Court of Appeal but their findings did little to persuade many Malaysians that justice had been served. Indeed, the conviction caused a festering sore in the Malay community.
When the Federal Court overturned the sodomy conviction in 2004, they noted that Anwar and Azizan may have engaged in homosexual activities but pointed out that the burden of proof had not been met by the prosecution, particularly in proving the period of the offence. The date and time of the offence is an essential part of the charge. Only then can the defence of alibi be raised.
The apex court was also less than impressed with the reliability of Azizan’s testimony. In the absence of DNA and strong corroborative evidence, they overturned the conviction.
In his blog, Tun Dr Mahathir Mohamad questioned the decision of the Federal Court, suggesting that the two judges who gave the majority decision did their utmost best to weave through legalities and get Anwar off.
He argued that the 10 judges who heard the sodomy cases against Anwar in 1998 at various stages agreed that Anwar had sodomised Azizan while only two gave technical reasons to absolve him. That could be a persuasive argument for his supporters but not for fair-minded Malaysians who expect the burden of proof to be met in any criminal case and for the main ingredients of a charge to be satisfied.
Especially in these politically-charged times where 48 per cent of the electorate are Opposition supporters. They will not tolerate it the police investigation into Saiful’s allegation against Anwar is rushed, shoddy and full of holes.
The administration and the police force know this. That is why both will fight to avoid any comparison with 1998.