FIRST WEEK OF ANWAR'S TRIAL -- VICTIM TESTIMONY

UNCLAS SECTION 01 OF 02 KUALA LUMPUR 000095 SENSITIVE SIPDIS E.O. 12958: N/A TAGS: PGOV PHUM KJUS MY SUBJECT: FIRST WEEK OF ANWAR'S TRIAL -- VICTIM TESTIMONY AND DEFENSE MOTIONS REF: KL 0064 ¶1. (SBU) Summary: The first week of opposition leader Anwar Ibrahim's sodomy trial, which began February 3, featured graphic testimony by former Anwar aide and alleged victim Saiful Bukhari, extensive press coverage in both the government-influenced media and blogosphere, and motions by the defense for High Court Judge Mohammed Zabidin to recuse himself from the case because of alleged bias in his treatment of the press. Recessed for Chinese New Year, the trial is expected to resume on February 18. ¶2. (SBU) Comment: Saiful's testimony -- including closed-door testimony that was quickly leaked but not published in major newspapers for fear of contempt -- was extremely graphic, but the sodomy allegations do not have the shock value they had in the 1998-99 case, when Anwar was convicted of sodomy and abuse of power. This trial, dubbed "sodomy II," is seen by the opposition and much of the public as a repeat effort to undercut Anwar and weaken the opposition. The government's counter-argument is that the trial is based on a legitimate violation of the law and is an example of due process where the presumption of innocence applies. To date, there have been no large demonstrations because of the trial. End Summary and Comment. ¶3. (SBU) Anwar Ibrahim's trial began on February 3 with 25-year-old former Anwar aide Saiful testifying about alleged sodomy on June 26, 2008. High Court Judge Mohammed Zabidin agreed to lead defense attorney and opposition member of Parliament Karpal Singh's request to hear the most explicit testimony "in camera" (reftel). Saiful's verbatim closed-door testimony about Anwar ordering him to submit to sodomy and his detailed description of the events that followed, were leaked to the media on February 5, but were not subsequently published. (Note: On February 4 and 5, Karpal made scathing but legally precise accusations that "Utusan," an UMNO-owned newspaper, should be cited for or warned of contempt, due to two questionable captions that ran the day before. Although the captions are in a legal gray area, there is no doubt that publication of the graphic testimony would have been identified as contempt. End Note.) The defense was expected to begin cross-examining Saiful on February 8, but that was delayed by defense motions. ¶4. (SBU) The defense objected to coverage of Anwar's trial in the Malaysian-language "Utusan" newspaper, which is owned by the United Malays National Organization (UMNO),the main component of the ruling National Front (BN) coalition. The defense argued that "Utusan" should be cited for contempt, or at least warned, for publishing the tag line (in Malaysian) "I didn't want to be sodomized any more" after the judge had ruled that the reference in Saiful's June 28, 2008 police report to previous instances of sodomy should be expunged from the testimony, because he was only accused of the June 26 act. In addition, the defense argued that the newspaper's photo caption indicating Saiful pointing to the bed in the condominium was factually inaccurate. In both cases, the judge noted that there was no evidence that there was malicious intent on the part of "Utusan," though he also didn't warn "Utusan" that its comments were potentially in contempt. ¶5. (SBU) The media was abuzz on the morning of February 8 when the defense team was expected to begin its cross examination of Saiful. Instead, the defense team dropped a bombshell: they wanted the judge to recuse himself because his previous two decisions on contempt showed bias in favor of the prosecution. Karpal conceded that there was some gray area regarding whether or not "Utusan" was in contempt, but the judge's failure to issue a warning for their captions indicated bias. Over the next two days, the prosecution and defense made their arguments to the judge on whether or not he should recuse himself; the judge has called for a recess until February 18, at which time he will announce his decision whether or not to recuse himself. ¶6. (SBU) PolCouns and Pol Specialist met with a member of Anwar's defense team on February 10, who said that the defense believes it can refute the prosecution's case in detail. The attorney said he had consulted extensively with forensic experts in the UK and India during the months leading up to the trial, and was prepared to refute the physical evidence that the prosecution was expected to present. For example, the experts he consulted agreed that sperm would not have remained intact in the alleged victim's anus for the two days between the act and the medical examination, due to bacterial attack. Nevertheless, said this attorney who was also involved in Anwar's 1998-99 defense team, the government was determined to convict Anwar. KUALA LUMP 00000095 002 OF 002 The judge would feel pressure to convict, so that he could get promoted. The attorney forecast that Anwar would not be jailed after a conviction, but would instead be left "defamed" and allowed to pursue various appeals. KEITH