The process of "mubahalah" is a process whereby a Muslim would swear to the truthfulness of a fact asserted by him or her as true in the name of Allah and in front of the Quran. Muslims believe that if a Muslim dares to go through the process of "mubahalah" knowing that what he or she is asserting is not true, he or she would be a sure candidate for hell in the afterlife and that various hardship would befall him or her even before death. It would not be an understatement to say that "mubahalah" is almost the ultimate test to determine whether somebody is telling the truth or otherwise in Islam. Almost all Muslims would believe in a person who had asserted a fact through this process as no Muslim would even dare to swear by the Quran - let alone in a mosque and in the name of Allah - if he or she is not telling the truth. (In Chinese tradition, we of course would have come across the act of slaughtering a chicken in a temple to prove that one is telling the truth).
Anwar Ibrahim has been accused of sodomy by Saiful and he was in fact charged in the Sessions Court recently. The fact that there is a court proceeding pending against Anwar Ibrahim is therefore beyond any argument. It is last reported by Malaysiakini that the case is now fixed for mention on the 10th September 2008 on which date an application to transfer the case to the High Court would be made by the prosecution.
The question now is whether a fair trial of Anwar Ibrahim is possible in view of Saiful's "mubahalah". It is arguable that a fair trial of the case is now impossible. Should the case be fixed for trial before a Muslim Judge, with all due respect, it will always be in the mind of the Muslim Judge that Saiful, the accuser, had sworn in a mosque in the name of Allah and in front of the Quran. It would be reasonable to assume that the Judge woud find it difficult to disbelieve what Saiful had said in view of him swearing as such. By contrast, Anwar Ibrahim has not done so. It is not unreasonable to conclude that this would lead to an almost incontrovertible "proof" in the mind of any Muslim Judge that Anwar Ibrahim is guilty of sodomising Saiful without his consent.
In addition, I am sure there will be many Muslim witnesses who would appear for the prosecution or the defence. The same belief will always linger in the mind of these Muslim witnesses. These witnesses would include any expert forensic witness and any other witnesses who would appear in Court to support the prosecution's case or the defence. Regardless of who they are - and for which side of the fence they are appearing for - these Muslim witnesses may have trouble to be independent in view of Saiful's action. It would not be unreasonable for any of the Muslim witnesses to now change their intended testimony in view of the "mubahalah" by Saiful. It would not be surprising that even some of the Muslim Counsel appearing in the case to now have doubt about Anwar Ibrahim's innocence!
Under the law, the case is now sub judice (a latin phrase which literally means "under judgement"). When a matter is sub judice, any comment or action which could prejudice the fair trial of the case or which could obstruct the process of justice is prohibited. In my opinion, the "mubahalah" by Saiful is an action which unnecessarily prejudices the fiar trial of the case. In fact, it could be even argued that it amounts to an obstruction of justice in view of the fact that there would be many Muslims who are directly involved in the case.
Any party who makes any statement or commits any act against the principle of sub judice may have commiteed contempt of Court. Anwar Ibrahim's Counsel, I am sure, will now be looking at the matter closely. But if I were one of them, I would be filing contempt proceedings against Saiful by next week!
Is a fair trial of the sodomy case now possible? I will let all of you decide.