Saturday, August 16, 2008

"Mubahalah" By Saiful - a fair trial is now impossible?

It is reported by Malaysiakini that Mohd Saiful Bukhari Azlan, the man accusing Anwar Ibrahim of sodomy, had sworn on the Quran that Anwar Ibrahim had sodomised him without his consent. He had done so at the Federal Teritorry Mosque in Jalan Duta. During a press conference at a hotel on 15th August, a 2 minute video recording of the swearing - which is called "mubahalah" in Islamic term - was shown to reporters.

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.


9 comments:

Antares said...

First of all the very idea that anal or oral sex between consenting adults is deemed a punishable offence in Malaysia - deserving a 20-year jail sentence plus caning! - puts us in the same barbaric category as Nigeria where a woman named Amina Lawal nearly got stoned to death for adultery, even though she was a single mother and alleged that she was abandoned after a brief affair with a married man. Surely, we in Malaysia do not wish to be viewed as a pre-neolithic nation in terms of moral legislation? These antiquated laws are the hallmarks of a country trapped in a timewarp - between the Dark and Digital Ages!

Secondly, anyone with even one functioning braincell can see that Umno is TERRIFIED of Anwar Ibrahim's ascension to power - because they would then have no more reason to exist - with the power to rob, rape, and ravage the country with impunity abruptly taken away from them. That's why they would do say or do ANYTHING - no matter how despicable and loathsome - to hang on to their control of the federal government, after losing 5 or 6 prime states to Pakatan Rakyat in the shock elections of March 8th 2008.

For BN to keep pushing the sodomy case at this point can serve only ONE purpose: if they pick a crooked judge to hear the case and get a conviction, they can then lock Anwar away indefinitely - and, if this triggers a massive uprising, it will be the excuse needed to declare a national emergency and declare martial law. These fuckers are totally DESPERATE, don't forget. That's why we cannot possibly afford to have BN continue misruling the nation - they are now in the terminal stages of political insanity!

donplaypuks® said...
This comment has been removed by the author.
donplaypuks® said...

Bro

Saiful now says it only happened once and it was NOT consenual, meaning rape.

Jessica Alba No Pedra Bianca says it was consensual and that's why AG has charged DSIA under S377B. Do they know something Saiful doesn't? And who was the party - Jessica or Saiful?

Then why did Saiful talk about 7-8 other occassions and 3 oveseas trips implying 'something' happened then?

And if it only happened on 26th June, why did he meet dpm twice and SAc II in room 69, Concordat Hotel. And why did dpm have selective memory about 2nd meeting?

And what about Piss Raw Wee No Sodo Mee MR and missing doctor?

Who did it to whom with/without condom in condominium with plastic tube with/without batteries included/exvcluded in which room with 5 witnesses as alibi?

A brilliant game of Malaysian Cluedo!!

THE MOTHER OF ALL CONSPIRACIES!!

Please ask Mrs. DSIA to start measuring curtain and carpet sizes at Putrajaya 1st - 5th Floor today. The time has arrived.

http://donplaypuks.blogspot.com
refre my blog 'Beijing Olympics Rocked by Scandal One.'

Crankshaft said...

In a better system, contempt proceedings against Saiful would have legitimate grounds.

But we don't even have a proper judiciary. Our basics are not in play.

We have degenerated to spectacular levels.

agnos said...

that is one hell of a creative argument NG! are u a lawyer btw? :-) it sound so possible to use your argument at least to a layman like me.

but is swearing on holy book legit from a law point of view?

art harun said...

Agnos, that's not creative arguments. They are all true! :) To stretch it a bit further, the arguments alos apply to non-Muslim Judges and witnesses. They, like their Muslim brothers, also know how serious the swearing before the Quran and in the name of Allah is. So, in their mind, and it will always linger in their mind, that Saiful is telling the truth. Contrast that against the fact that Anwar does not swear as such, it will be planted in their mind that Saiful's account has been "tested" by the ultimate test, ie, the swearing. A fair trial is possible, you think?

agnos said...

well, even b4 d swearing i am not too optimistic abt any fair trial - unless persons like Sri Ram is presiding.

Deux Anges said...

The malicious part of my brain is thinking:
Why doesn't Anwar declare a Mubahalah swearing the exact opposite? Then what would a Muslim judge be forced to decide?

art harun said...

Then he would have to toss a coin. :)