The preliminary thought that comes to mind is that we should brace for difficult times of protracted political uncertainty aggravating a deteriorating economic situation.

The news on Anwar is not only bad for him but bad for the Opposition (Paktan Rakyat) of which he is defacto head and, ironically, bad too for the government, which knowing it, it will pursue Anwar’s prosecution.

I say this even IF Anwar were really guilty of the latest allegations (which I am not prejudging or saying, at this juncture that he is or is not).

In matters of this sort, the truth matters not, what matters is evidence and even more important public and popular perception/bias of what is the truth.

No matter what – even if the state were to produce DNA as evidence, the public will not, at this juncture, believe.

In the first place the Federal Court on 2nd September 2004 overturned by majority of 2-1 Anwar’s earlier conviction on Sodomy.

To charge him once again, his lawyers would straightaway raise preliminary procedural objection of what is known as ‘double jeopardy’.

Derived from a fundamental and ancient rule of law that extends back to the time of the Ancient Greeks “autrefois acquit” or double jeopardy is both a rule of law and a legal right that no person should be tried twice for the “same offence” of which he has been previously acquitted or convicted. This principle deeply ingrained in Anglo-American system of jurisprudence find expression in Article 7(2) of our Federal Constitution.

The underlying idea – and spirit behind Double Jeopardy rule – is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty….

How the rule is applied in Malaysia is not very developed by past cases, and much will depend on the lawyers arguing what is the scope of the expression “same offence” and whether a fact matrix involving different victim, a different time and place would exclude double jeopardy application on grounds that it is not same offence. Even if double jeopardy is thrown out, they will still have to prove guilt beyond reasonable doubt. All this investigations, trial motions will drag and take time, maybe years.

The problem is – even if the technical requirements of double jeopardy could not be established by Anwar’s defence team – the spirit of what double jeopardy seeks to guard Anwar against would be satisfied, in lay public opinion.

The government is in the eyes of the public already guilty : the Lingam video clip shows a judiciary compromised by executive interference; past prosecution of Anwar has been shown to be political persecution vindicated by his earlier sodomy conviction being overturned; questions swirl around the manner of state prosecution of Altantuya Shaaribuu murder case especially in light of RPK’s statutory declaration, and people question why when it comes to sexual deviance like sodomy there is more enthusiasm and alacrity to pursue investigation twice over than a graver offence like murder, and so and so on….

Against this backdrop of negative public opinion, there is a real risk that if Anwar were prosecuted, many people would take to the streets, which the government may respond by crack down.

The gridlock is that if authorities manage to procure convincing evidence (DNA for example), the ‘powers that be’ will not give up bringing down he who represents the biggest threat to their political survival and relevance – and equally no matter how convincing the forensic evidence, it will not convince an iota of the pre-set beliefs of people to whom the very existence of BN is disaproved as a scourge on this country : they will say the evidence is fabricated/manufactured; the complainant aide (mere 3 months recruited to help in election) was planted as agent provocateur; that the whole prosecution is mala fide trying to undo and unwind the people’s gain from the poiltical tsunami of 8th March.

The government including its entire criminal justice and administration system will not be given the benefit of doubt in the Court of Public Opinion and this is where the gridlock lies – two opposing positions neither giving in to the other.

So all this means that if the authorities persist in prosecution (which it is 99.99% likely to do), it may – though I hope not – lead to massive confrontation and unrests on the streets, bad for peace, bad for investment, bad for everybody.

So far it was 23-year-old Anwar’s aide, Saiful Bahari who lodged the police report of being a victim of sodomy at the Jalan Travers police station at 6 pm 28th June. Police have not yet investigated the report, much less submitted their findings to AG, and AG for the govt has not preferred any charge yet.

However as preemptive move, Anwar said in his statement – “The report has been organised by interested parties to attack me in retaliation for evidence I have recently obtained implicating IGP (inspector-general of police) Musa Hassan and the AG (attorney-general) Gani Patail in misconduct including fabrication of evidence in the cases launched against me in 1998-1999. This vile attack will not prevent me from releasing this dossier to the public.”

Can Anwar disclose and prove who are specifically the “interested parties” who ‘organised’ Saiful Bahari to lodge a report that Anwar alleges “fabricated”?

Anwar has made a serious allegation which, if true and proven, is not only exculpatory of allegations against him but in addition also implicate Saiful Bahari and all those parties” who ‘organised’ him to lodge the report in the offence of criminal conspiracy.

The onus is on whim to prove what he alleges and how he could in first instance exercise such lack of due care to have placed himself in a position of appointing a political aide, whom he now alleges is in apparent conspiracy with “interested parties” out to destroy him.

Undergrad2,

I understand what you’re saying about double jeopardy & separate offences but this guy (Anwar) is a smart guy with smart lawyers coming out with his latest statement (earlier posted.

The test for double jeopardy is whether it is a continuing same transaction between the first offence of sodomy for which he was charged, convicted and acquitted and the second that he thinks that he will be….

So to show same continuing transaction of the first to the second, his latest statement – (quote) “ I have recently obtained implicating IGP (inspector-general of police) Musa Hassan and the AG (attorney-general) Gani Patail in misconduct including fabrication of evidence in the cases launched against me in 1998-1999. This vile attack will not prevent me from releasing this dossier to the public.”

See the drift and connection (in light of double jeopardy’s objective – to not allow repeated attempts (one continuing to the other as if one transaction albeit separated by different victims and time) from one “interested source” to convict an individual for an alleged same offence, thereby subjecting him to embarrassment, expense and ordeal ? :)