The Guilty Verdict Passed On
Dato’ Seri Anwar Ibrahim
This review concerns the trial and the verdict pronounced by Judge Arifin Jaka. The judge found the defendant Dato’ Seri Anwar Ibrahim guilty as charged and sentenced him to nine years imprisonment. The review is based on worldwide reports that covered the proceeding on daily basis.
How does the Shari’a look at the legality and validity of the proceedings and the ensuing verdict?
1. The Shari’a recognizes that the accused is in a position of weakness as he is the subject of the legal system and is put on the defensive. He is likely to be abused, and his rights violated. The cardinal principals of Shari’a is to establish Justice.
(إن الله يأمر بالعدل والإحسان)
It is for this reason that we find the prophet (P) and all the Khulafaa al Rashidoon documented their guidelines to the judges they appointed, exhorting them to be extremely sensitive to the rights of the “accused” (حقوق المتهم) .
Upon reviewing the proceedings of the referenced trial from Shari’a point of view, one can write volumes on the violations of the rights of the “accused”. We will limit ourselves here to only a few of them.
2. The alleged offense, sodomy, is a crime of honor and character, like zina, requires four credible eyewitnesses who have witnessed the act first hand, with no barrier or obstruction. If there is the slightest discrepancy in their testimony, the whole case is to be dismissed and the witnesses or accusers are guilty of slander and libel (حد القذف) .
3. The Shari’a also took special note of the case where a commoner accuses a person of high ranking stature (اتهام ذوي الهيأة), recognizing the possibility of human weakness, greed and envy, and the mean motive of embezzlement. Islam required proof that goes beyond personal admission of an alleged “victim”. If the slightest discrepancy is detected in the testimony, the case is dismissed and the “accuser” is to be punished. This is an effective and fair protection for society.
4. Denying the defendant to call and cross-examine a key witness in the person of the Prime Minister. This witness had material evidence as
One) He, at first, publicly announced innocence of the accused.
Two) Later, he emphatically and repeatedly announced in public that he is convinced the accused is guilty.
Three) He, being the Prime Minister and the Home Minister at the time had access to all police and intelligence reports, being their supreme head.
Four) He had met, privately, with the alleged victim and key prosecution witness, Mr. Azizan, together with the key prosecution witness in the first trial, Ummi Hafilda.
Five) He was the direct boss of the defendant and his immediate superior for 17 years. He is the most substantial “character witness” as the case involves, in essence, character.
Six)The Quran commands "ولا يأبى الشهداء إذا ما دعوا" البقرة that no witness shall withhold a testimony when asked to do so. It is tantamount to obstruction of justice, which is a major sin in Islam.
5. The defendant was denied request, legitimate as it is, to have the “victim” and key prosecution witness medically examined for signs of sodomy. Medical evidence can be conclusive in many such cases. This is all the more important because medical evidence proved, beyond doubt, that the other defendant, Mr. Sukma, had no signs of sodomy, which substantiated his claim that his confession was extracted from him forcibly. This is how the prosecution changed their filing and made Mr. Sukma a second defendant accused of sodomizing Azizan, and not being sodomized by the defendant, Dato’ Seri Anwar Ibrahim.
6. Lack of specificity (انعدام التحديد الدقيق) in the date of the alleged crime. The prosecution key witness-cum-victim stated a date that could not stand proof of alibi. He kept changing it by years and months. In any fair Shari’a or civil court this would have been enough to declare a mistrial and render the witness/victim as guilty of slander “Qathf” (حد القذف) . The court, regrettably, accepted a period of several months denying the defendant the right for a specific date.
7. Witness tampering: It became evident, in the hearing, and Mr. Azizan admitted that he was coached by the police and the prosecutor in changing the dates mentioned above. No Shari’a or civil court would qualify such a witness as “credible”.
8. Attorney Intimidation: During the course of the trial, the judge repeatedly threatened the defense attorneys with “contempt of court”, until, on one occasion, he actually struck one of them with a sentence for the same perceived violation. International observers agree that the defense lawyer was carrying out his duty well within acceptable bounds of his profession. Shari’a views any intimidation of a lawyer as intimidation of the accused as the lawyer is his attorney.
9. The “accuser” and key witness (Azizan) according to Shari’a ruling should have been disqualified as a witness forever. He was convicted of “adultery” (زنا المحصن) . The Quran is specific and clear on this issue (ولا تقبلوا لهم شهادة أبداً) .
Based on the above Shari’a considerations the trial and the verdict are an embarrassing conviction to the Malaysian System and of justice. It has disgraced the great name of Malaysia. The judge should have upheld the values of Justice and Shari’a and the ethics of his profession by dismissing the case outright. It is judges like him who are the subject of the Hadith of the prophet (P) (وقاضيان في النار) i.e. in two out of every three judges end up in Hell fire.
In conclusion, the Islamic opinion in the verdict passed on Dato Seri Anwar Ibrahim, convicting him of the crime of sodomy is invalid. The burden of proof in Shari’a is on the prosecution and the accuser (البينة على المدعي) as they failed to prove beyond any doubt, the alleged crime. The judgment, as such is in violation of justice, the Shari’a law in form and substance. It is a gross violation of the defendant’s Human Rights.
Dato’ Seri Anwar Ibrahim should be declared innocent. He should be released immediately and his accusers should be tried for slander and libel.
وبالله التوفيق والهداية
Dr. Shaikh Taha Jabir Al-Alwani
Chairman, Fiqh Council of the US and Canada
Member, International Fiqh Council, Jeddah
Member, Fiqh Council of Europe
Founding Member, Muslim World Leage, Makkah
President, Graduate School of Islamic and Social Sciences
Professor, Imam Al-Shafii Chair, GSISS