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 ? :)

Read his statement – “I believe we are witnessing a repeat of the methods used against me in 1998 when false allegations were made under duress. ..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….”

In double jeopardy the “same transaction” test has been used. Here the preemptive move is to say that first sodomy charge and the future second though involving different victims and facts and separated in time are on both occasions triggered by same motivations and same set of interested parties against which justice requires that he should not be subject to two times jeopardy which is what the rule, at its heart, is all about.

This raises troubling questions. 1. it is very serious allegations he has made against the two top law enforcement officers in the nation, which if he has no such a dossier or if he has the dossier does not contain evidence that could stand the light of judicial scrutiny, Anwar will be in deep trouble over a separate issue/offence; on the other hand if he had this dossier all along, it raises troubling question of why didn’t he disclose its existence earlier (at the time he showed executive interference of judiciary by revealing about Lingam clip) .This is no good as this will lead to further questions of why he keeps dossiers (and not disclose them to public until he’s under pressure as like now) just like what he accuses his political enemies of doing by way of political blackmail!

To Undergrad2,

On the basis of what I said, he will likely raise “double jeopardy” defence – that the first offence of sodomy and the future second though involving diifferent victims, facts and place are still “same offence” (not as it is understood commonly by laymen) but in the special context of what it is intended in law of double jeopardy linking the first and second by “one transaction” criteria. You wiull note that his latest statement was made after legal advice.

///Wouldn’t a simple DNA test prove or disprove the allegation?/// – TheWrathOfGrapes

It ought to. DNA profiling has been used in many jurisdictions for judicial determination of paternity suits or to identify and convict suspects in especially sexual crime.

Given what happened before, you can bet that they (the authorities) would not bring a charge unless armed with DNA evidence from accused’s semen. (They would be very stupid otherwise). And if they could indeed come out with positive DNA matching (presumably taken from the complainant immediately after a so called act of sodomy in what must have been a consensual situation), it would lend credence to the speculation of a very high probabilty of the complainant being “planted’ in proximate position right from the beginning to compromise and bring out a person’s momentary weakness. So if they would not bring a charge unless they are armed with DNA evidence, the moment they could bring a charge armed thus with such evidence, there’s very little defence an accused can put up except only a procedural one (rightly or wrongly) – Double Jeopardy, which as a defence stands independent of proof of inocence or guilt! Whatever you can also bet that given the mood of the country and the prevailing anti BN sentiments and the fact that all collective hopes for transformational change for the better repose in the person accused – and the fact that the ruling coalition has every reason to bring his political down fall – no amount of DNA matching no matter how scientificaly convincing and persuasive, a conviction based on guilt would not be accepted by large sections of the public who are already convinced, in their perception, that the BN is guilty as charged for 50 years of depredations and misfeasance and has no moral legitimacy to assert any moral or legal claim to truth on any matter. That is the current position. (As I said earlier in public matters, it is perception of the Truth than Truth itself that matters).

Yes anything is possible but I think we should try not to speculate based on our feelings but to interpret whatever based on incontrovertible facts as they unfold (to be fair to others).

To Undergrad2, whichever, whether double jeopardy or if that fails prosecutoral misconduct, its oK as long as it is good for defence. Public mood is such that whatever evidence tendered, it will not be easily believed (nationally or internationally) knowing the low mark or point of the BN’s credibility. So that means there will no charge be preferred – unless with convincing DNA matching evidence – and even that, many won’t believe – but because the courts may believe, then the only defence left, in pre-emption, is double jeopardy. If that could be established (whether one calls it by that name ‘double jeopardy’ using the ‘same transaction test’ or prosecutorial misconduct), it is still procedurally a complete defence that is independent of and separate defence from the question of innocence or guilt or proof of either, making that question irrelevant. Think about this implication and wait for more developments as they unfold. However as you said – correctly – neither is easy, and “easier for one, of course, does not mean that easy!”.