If process is paramount, Anwar ought to go free...

The modern media melodrama typically involves the courtroom: from Jacob Zuma's indictment for rape, to Julian Assange's sex-crime troubles, to Anwar Ibrahim's sodomy arraignments, the dramatic beginning of a trial simultaneously heightens and hides issues in the backdrop.

The issue of the morality of the arraigned is raised against a background where there is not much that can be said about that aspect of the lives of people who stand to gain if their target is found wanting on that score. And hidden by the high-octane drama is the question of the fragility of standards of civilised conduct in times when powers-that-be are in a state of panic over a threat to their position.

More than in the first edition a decade and more ago, Anwar's second encounter with sodomy charges frames those issues in sharper relief. A decision tomorrow by High Court judge Mohd Zabidin Mohd Diah in Sodomy II not to ask Anwar to enter his defence would have twice the restorative effect on judicial independence and impartiality that the appellate courts had in overturning the infamous Ayer Molek decision a couple of years ago.

In the latter case, a High Court howler in the mid-1990s was rectified on appeal more than a decade later. The eventual outcome in the Ayer Molek case, as in Sodomy I when Anwar was freed in 2004 on appeal after spending some years in jail, gives hope that though the deliberative wheels of justice may grind painfully slowly, the possibility of ultimate vindication cannot be written off.

Presence of other DNA ignored

In Sodomy II, the denial to the defence of access to medical and other reports was a deprivation of the defendant's right of due process. Strenuous clamour by the defence at successive stages of this deprivation was met by the prosecution's argument, upheld by the judge that deprivation would not be fatal to the case against the defendant.

This led to the ludicrous stage when doctors who had examined the accuser could not refer to notes - while under cross-examination by defence lawyers - that they had made during examination because that would have meant that access to the notes would have to be granted to the defence. As if that peculiarity was not enough, the DNA specialist who testified in the trial was unconcerned with the presence of other DNA in the anal area of the accused; she was only concerned with one person's DNA - that of 'Male Y', which the specialist confirmed matched that of the accused.

The list of peculiarities that this case sported endangers the modern conception of law which is that justice is whatever result just procedures have led to. From that standpoint, justice in Sodomy II would better be served if the accused is not asked to enter his defence.-Terence Netto

source:malaysiakini

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