By Shazwan Mustafa Kamal PUTRAJAYA, Feb 12 — Datuk Seri Anwar Ibrahim wants the sodomy charge against him thrown out because clinical reports suggest there was no anal penetration of his accuser, but prosecutors say semen samples can still prove unnatural carnal activity.
Anwar’s lawyer Karpal Singh and Solicitor-General 2 Datuk Yusof Zainal Abiden argued before the Court of Appeal this morning over the question of penetration in the Opposition Leader’s bid to have the sodomy charges against him struck out.
The Opposition Leader is appealing against a High Court decision to proceed with his trial. His trial has already started in the High Court, but Anwar now wants the Court of Appeal to put an end to it.
Court of Appeal judges Datuk Wira Abu Samah, Datuk Sulaiman Daud and Datuk Azhar Ma’ah conceded that more time is need in order to study the submissions of both the prosecution and the defence. They said they could only deliver a decision on February 17, a day before the High Court trial is set to continue.
On Dec 1, the High Court had dismissed the opposition leader’s bid to strike out the charge against him. Judge Datuk Mohamad Zabidin Mohd Diah had ruled then that the court cannot use its inherent powers to strike out the sodomy charge based solely on medical reports which found no conclusive clinical evidence of anal penetration on Anwar’s accuser and former aide Mohd Saiful Bukhari Azlan.
Anwar had tendered two medical reports from Hospital Kuala Lumpur and Hospital Pusrawi which stated those findings.
Today, the clinical reports became the focus of both teams in presenting their arguments.
Lead counsel for Anwar’s team Karpal argued that the High Court had the power to strike out the charge if it was “abusive of process, oppressive, and prejudicial.” The veteran lawyer stressed that the crux of the case hinged on the question of whether penetration had actually taken place, which according to the clinical reports suggested otherwise.
“The learned judge was misdirected by saying that the reports could not determine whether the act had occured. What does the judge rely upon?
“Was the judge right in having considered the impact? This has been a trauma for Datuk Seri Anwar and his family,” said Karpal.
The fiery lawyer cited the clinical reports by Hospital Kuala Lumpur as proof that there were “no conclusive clinical findings suggestive of penetration in the anus or rectum area.”
“Your lordship, the word conclusive means certainty, far beyond a reasonable doubt. With these findings, I don’t know how the prosecution would proceed with this trial,” said Karpal.
According to the defence lawyer, the fundamental element of the charge against Anwar stands unproven because of the reports and calling other witnesses to testify would simply be an exercise in futility, as section 377B of the Penal Code dictates that penetration is an important element of the charge.
“It is persecution, not prosecution. The court cannot sit back and let the prosecution carry on..the court cannot abdicate from its divine duty to intercede. “It does not matter that the trial has proceeded. The trial is being rushed. Whoever is doing it has a motive.
“The charge ought to be struck out now or is this the result of some black hand behind the prosecution of Datuk Seri Anwar Ibrahim?”
Solicitor-General 2 Datuk Yusof Zainal Abiden countered Karpal’s arguments by arguing that the court must allow the evidence to be produced, stating that the clinical reports are not conclusive.
“The medical report is not substantive evidence, it only corroborates the author (doctor). What the author has to say in court needs to be taken in account,” said Yusof.
He dismissed the defense’s evidence was “affidavit evidence which is not evidence, evidence which the court permits is evidence in court.
“The absence of laceration does not excuse penetration. Proof of penetration of the anus is not needed to establish unnatural carnal activity.
“The presence of traces of lubricant may be suggestive as evidence. The finding of spermatozoa will prove the act almost beyond dispute,” stated Yusof.
Anwar is accused of sodomising his one-time aide at the Desa Damansara Condominium on June 26, 2008.
The former deputy prime minister has vehemently denied the accusations hurled by Saiful, describing it as “evil, frivolous lies by those in power” when the charge was read out to him.
He is charged under section 377B of the Penal Code and can be sentenced to a maximum of 20 years’ jail and whipping upon conviction.
The trial is taking place 18 months after Anwar was charged in court in August 2008. Anwar was charged with sodomy and corruption in 1998 after he was sacked from the Cabinet and was later convicted and jailed for both offences.
He was freed in September 2004 and later resurrected his political career by winning back his Permatang Pauh parliamentary seat in a by-election in 2008, which had been held in the interim by his wife.
He had earlier led the opposition coalition, Pakatan Rakyat, to a historic sweep of five states and 82 parliamentary seats in Election 2008.
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