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Thursday, 20-May-2004 4:19 PM Day seven of the Anwar Ibrahim Appeal Hearing Today was the seventh day of Anwar Ibrahim's and Sukma Darmawan Sasmitaat Madja's appeal hearing at Malaysia’s Federal Court in Putrajaya, most ineptly named the 'Palace of Justice'. Christopher Fernando, Anwar's lead counsel, started the morning’s session by stressing on two key issues; Azizan Abu Bakar's (the prosecution's key witness and alleged victim of the sodomy act) contradicting testimony and his lack of credibility. “It would be contrary to all entrenched fundamental principles of law and justice to uphold such a perverse and untenable decision,” Fernando kicked off by saying. “There can be no dispute that the entire prosecution case hinges on the evidence of Azizan Abu Bakar.” “That being the case, and this is not disputed, the issue of Azizan’s credibility is of paramount importance,” stressed Fernando. “It does not take much imagination to see that the learned judge was grossly in error in his assessment of Azizan's credibility,” argued Fernando. Fernando then took the court through Azizan's testimony. Azizan had testified under oath, not once, but three times, that he was never sodomised by Anwar. Fernando then read the transcripts of the trial to support this argument. Azizan made it very clear from his own admission while under oath that he was never sodomised, said Fernando. And he admitted this three times. "I asked him a third time just to clear any doubt from anyone's mind," explained Fernando. In the reexamination, Azizan changes his position and says he was, in fact, sodomised but only up to September 1992, explained Fernando. Even if you can believe that he was sodomised, he made it very clear he was never sodomised after September 1992. Then, again, he changes his mind and says he was sodomised up to March 1993. It does not take a genius to figure out that the charges against Anwar was amended twice (first from 1994 to 1992, then to 1993) to match these changing dates in Azizan's testimony. The prosecution, however, has the gall to deny this and declares that the dates on the charges were amended due to a typographical error, Fernando told the court. Fernando then read out Azizan's testimony. "Did you tell the police you were sodomised in 1994?" "No." “Who fabricated the evidence?” “I don’t know.” "Did you tell the police you were sodomised in 1992?” "No." “Who fabricated this evidence?” “I don’t know.” “The date 1992 is false?” “Yes.” "I put it to you that the charge was amended to 1993 because the building was not even ready for occupation (in 1994)?" “I don’t know.” “Did you agree to this proposition?” "Yes.” Who asked you to change the date to 1993?" "SAC1 Musa bin Hassan (the investigating police officer)." When we applied to impeach Azizan, even the judge agreed that there are material contradictions in the witness' testimony, said Fernando. In trying to explain these contradictions, the Attorney General said, what the witness meant was that he was not sodomised in the house, not that he was never sodomised. The AG was putting words in Azizan's mouth. Clearly, Azizan was coached by the police as to what to say, and he merely parroted what the AG said. Fernando reminded the court that during the course of the trial the defense had asked Azizan why it took him five years to come forward to reveal that Anwar had sodomised him. And to this Azizan replied he came forward for the sake of his dignity and his religion. Azizan was trying to portray himself as a religious man, argued Fernando. Soon after, he was arrested for khalwat, destroying his entire credibility. The prosecution, however, contended that Azizan's conviction for close proximity (khalwat) had no bearing on his testimony. In spite of all this, the trial judge ruled that Azizan's testimony is as strong as the Rock of Gibraltar, said Fernando. Prior to that, this same judge remarked that Azizan's testimony is a catalogue of lies and contradictions. Whenever there is a benefit of the doubt it must be given to the defense, not to the prosecution. In Anwar's case it was the reverse. The trial judge erred on this fundamental issue, argued Fernando, and the Appeal Court overlooked this and upheld the decision. Fernando then took the court to the issue of fabricated evidence where Manjeet Singh Dhillon had alleged that the AG and prosecutor had tried to fabricate evidence against Anwar. Till today they have never rebutted this very serious allegation, said Fernando. And yet again the court overlooked this very important point. The judge failed to recognize the significance of this evidence. The crux of Manjeet's evidence is the perversion of justice, abuse of power, and a total disregard for the law. A prerequisite to a fair trial is not only a fair judge but also a fair prosecutor, said Fernando. The Court of Appeal judges misdirected themselves on this very serious point. They ruled that the attempt to fabricate evidence had no bearing on the charges against Anwar. Fernando said their action of attempting to fabricate evidence against Anwar proved the AG and prosecutor had a hidden agenda and should have withdrawn from the case. The AG and prosecutor were caught red handed trying to fabricate evidence against Anwar. Yet they were not asked to recuse and were still allowed to continue prosecuting Anwar. It was clear they were bent on obtaining a conviction by hook or by crook. In justifying their actions, the prosecution claims it is simply a plea-bargaining exercise and not an attempt to blackmail the accused into implicating Anwar in sex scandals. The conduct of the prosecutors raises the question of how many other witnesses had been coerced or blackmailed into fabricating evidence against Anwar. Fernando then asked the court for a commission of public inquiry to be set up to conduct an investigation into the conduct of the AG and prosecutor. Clearly Manjeet's allegation has merits. "If not, they would have jumped on him like a ton of bricks," said Fernando. If Manjeet had lied or had made a false statutory declaration, they could have taken action against him. After all, they had made a police report on the matter. They do not dare take action or charge Manjeet on his statutory declaration because they are worried that the truth will surface. An allegation of sodomy is easy to make but difficult to prove, and even more difficult to rebut, Fernando told the court. If it is that easy to indict and obtain a conviction on such a weak allegation and flimsy evidence, then no one in Malaysia is safe anymore. Say one day someone accuses the AG of sodomising him, Fernando quipped. How would the AG prove his innocence? To demonstrate the strong evidence of a fabricated charge, Fernando reminded the court that Anwar was originally charged with sodomising Azizan in 1994. However, in his testimony, Azizan said he was never sodomised after 1992. So they had no choice but to amend the charge to an offence committed in 1992. The prosecution then discovered that, in 1992, Tivoli Villa, the alleged scene of the crime, was not yet ready for occupation or habitation. So, again, they changed the date of the alleged offense in the charge to one day in January to March 1993, a period of three months. The trial judge practiced double standards in his treatment of witnesses, Fernando told the court. While he ruled the prosecution's witnesses as reliable and their testimony believable, he would dismiss the defense witnesses and would rule their testimony irrelevant. One point Fernando laboured on, which at one stage the judge interrupted and told him to get to the punch line, was the issue of a political conspiracy against Anwar. The prosecution, argued Fernando, failed to call witnesses to rebut the allegation of a political conspiracy against Anwar. Therefore, the allegation of conspiracy stands and was never disproved. It was the prosecution's job to call these witnesses and to rebut the allegation, which they failed to do so. On the testimony of Azmin Ali, Fernando said, "Blood is thicker than water. Yet Azmin came to court to testify under oath that his sister, Ummi Hafilda, had been bribed to make false allegations of sexual misconduct against Anwar." Yet the court refused to take this into consideration. Even the police who interrogated Azizan testified in court that Azizan had admitted he was bribed into make a false allegation of sexual misconduct against Anwar." On the issue of Anwar’s alibi, Fernando said that the prosecution declared it had complete records of Anwar’s and the Prime Minister’s entire movements. For their own security, the Prime Minister and Deputy Prime Minister are followed 24 hours a day and records of their movements are maintained. Why then did they not bring these records in court to prove Anwar’s whereabouts the entire three months from 1 January to 31 March 1993? And why was the charge not specific, since they have complete records of his entire movements, instead of stating the alleged offence as happening one day between 1 January and 31 March 1993? The police confiscated Anwar’s diaries on 2 September 1998. But the most crucial of those diaries, that for 1993, seems to have been misplaced and was never produced in court. And this diary too could prove Anwar’s whereabouts. If the 1993 diary plus the police or security records of Anwar’s movements had been adduced in court, then they would prove Anwar was never near the scene of the so-called crime from 1 January to 31 March 1993. On the issue of the onus being on the prosecution to prove Anwar’s guilt instead of Anwar having to prove his innocence, Fernando said, “Both the trial judge and the appeal court erred in reversing the onus of proof and again on that basis alone there was a miscarriage of justice.” Fernando completed his submissions at 1.00pm. Court reconvened at 2.30pm with Karpal Singh replying to the AG’s arguments on Section 402A of the Criminal Procedure Code and the mandatory Notice of Alibi that must be filed then days before the start of the trial which the court disallowed Anwar from doing. Karpal’s contention is that this is a mandatory requirement while the AG says it is not. Tomorrow, the court will hear Anwar's and Sukma's bail application.
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