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Thursday, 22-Jan-2004 11:32 AM THE ANWAR IBRAHIM HEARING: 19 January 2004 NOTES OF PROCEEDINGS Animah Annette Ferrar A pale and drawn Dato’ Seri Anwar Ibrahim was in court at the Palace of Justice again this morning together with his co-accused, Sukma, to hear their counsel’s submission appealing against the Court Registrar’s refusal to supply them with the Notes of Proceedings of the Appeal hearing. The Notes were requested to strengthen their affidavit claiming that the Court of Appeals judges had been given copies of the Notice of Alibi – the judges had in their judgment cited failure of defence counsel to give copies to the judges as one of the main grounds for rejecting the appeal. The Bail Application Counsel Christopher Fernando opened the proceedings by first raising the matter of the bail application by the two appellants. He reminded the court that they had been waiting for about 6 months for what should be a routine and speedy decision. He mentioned that, as Anwar’s health had taken a significant turn for the worse in recent weeks, as evidenced by the MRI and CT scans which showed two new back injuries, the grounds related to his need for medical treatment were even more pressing. He cited the cases of ex-President Josef Estrada of the Philippines and the Opposition leader of Zimbabwe who had both been granted bail, even though they were charged with capital offences. It would be unconscionable and grossly unfair to deny bail to Anwar and Sukma who are facing far less serious charges, especially Anwar whose health had deteriorated even further since the beginning of the hearing. Mr Fernando asked the learned judges to heed the advice of the new Prime Minister, who had exhorted judges to judge fairly and justly, especially in this case where it was only reasonable and sensible to grant bail. He reminded the court that public confidence in the judiciary was at an all-time low, and appealed to the judges, in the best interests of the nation and of posterity, to make a decision which would contribute towards repairing its tattered image. Attorney General, Tan Sri Gani Patail responded that the cases of Estrada and the Zimbabwe Opposition leader could not be taken as precedents as they were both as yet only charged and not yet found guilty. Counsel Karpal Singh now took over the appellants’ submission, mentioning again the inordinately long time taken by the judges to give their decision. “The hearing took place as far back as July 2003, with a further hearing on 8 December. It has been such a long delay without any visible cause. This seems to indicate that the judges are not willing to exercise their judicial powers by making a decision based on the law.” Justice P S Gill interjected that it was not right to place the whole burden of the delay on the shoulders of the judges – the wedding of Anwar’s daughter, Nurul Izzah, had also caused an interruption in the hearing. It was also unfair to measure the length of time from the first part of the hearing (in July), whereas it should rather commence from the date of its continuation on 8 December when new arguments had been submitted. Karpal Singh retorted that it was still a long time and it would set a dangerous precedent if judges were allowed to take an indefinite length of time to hand down decisions. Justice PS Gill then promised to give the judgment “soon”. At this, Anwar was so upset that he staggered to his feet and said loudly, “So many times you have made this same promise!” Justice Gill angrily told Anwar to keep quiet - “The only person entitled to make submissions is your counsel. You can be held in contempt of court.” Anwar: “You must not be contemptuous of the law, the Federal Constitution and of human dignity. As judges we expect you to speak the truth.” PS Gill: “We can only allow one person to speak on behalf of the defence.” Anwar: “Fine! Now I am speaking. Are you directing me to dismiss my entire counsel?” Karpal Singh deemed it timely to interject at this point and request the judges specifically to fix a date for the decision. Justice Gill, increasingly piqued, agreed to give the decision on Wednesday (21 January). Application for Access to the Notes of Proceedings Referring to the Court Registrar’s rejection of the defence counsel’s written application to have access to the Notes of Proceedings of the Court of Appeal hearing, Karpal Singh argued that the court has no right to prevent access. Whereas the Registrar had given the reason that “It is not the practice of the Court of Appeal to supply Notes of Proceedings”, Karpal quoted a case when an application was filed through the Federal Court to obtain Notes of Proceedings and the Notes had been supplied. Why, he queried, was the present case different? Furthermore, Karpal submitted, in the Evidence Act judicial proceedings were deemed “public documents”, and a further clause refers to the payment to be made in order to acquire them, further underlining that it is indeed allowable to grant access to them. It is a right granted under an Act of Parliament, and mere “practice” cannot override what is stipulated in an Act of Parliament. To support this, Karpal quoted two locally authored sources of interpretation of the law, which state that “Practice direction cannot be exalted into a rule of law.” The Registrar’s reason for refusing to supply the Notes should thus be deemed void. Notice of Alibi Karpal Singh moved on to the contentious matter of the Notice of Alibi, copies of which the judges still maintain were not given to them. Justice PS Gill: You should have marked the Notice of Alibi, then it would have been recorded. Karpal Singh: It was not marked because it was not an exhibit. It was given to Your Lordships merely to show it. PSG: So now you are applying to file an affidavit. Why don’t you just go ahead? KS: Yes, we will do so, but we need the Notes for this purpose. PSG: What’s the point? There is no record of it either in the Notes or in the court file. KS: We still feel that the Notes will provide the evidence we need. PSG: The Notes are intended solely for the reference of the judges. KS: The Notes are necessary for us to complete the jigsaw puzzle, to enable us to make a complete defence. This right should not be denied. Karpal went on to say that the Notice of Alibi issue is of major importance to the case. “If Your Lordship had given it proper attention at the time, we would not be here to-day. The supply of Notes of Proceedings is not an indulgence, but a right enshrined in an Act of Parliament.” Gani Patail agreed that the Criminal Code provided for supply of Notes of Proceedings, but he said that this was restricted to the High Court and below. The High Court is mentioned specifically, whereas the Court of Appeal is not mentioned. Other clauses indicate that the “proceedings” referred to are only those of hearings which involve submission of evidence. With reference to the matter of what documents can be considered “public documents”, Gani said that there is a difference between “Notes of Proceedings” and “Notes of Judges”, the former being complete factual records and the latter the personal comments and jottings of the judges for their own reference. As such an applicant must be able to back up his application with the law, and cannot simply be given access to every document. “Proceedings”, he maintained, only applies to trial courts in which evidence is submitted. Personal notes made by judges do not amount to notes of proceedings. Karpal Singh disagreed with this argument, saying that Rule 91 cannot override the (Evidence) Act. Augustine Paul in his book had stated that judges’ notebooks count as part of the proceedings, thus they constitute “public documents”. He said that judges’ records must be open to public scrutiny. On a further point, Karpal argued that there is a difference between notes of evidence and notes of proceedings. He quoted two cases which recognized judges’ notes as a part of the proceedings which could be admitted as evidence. Gani Patail, however, interjected that this was a matter not of right to access but of admissibility of evidence. Most of the cases referred to mention specific sections of the notes and cannot be interpreted as a blanket inclusion. KS: But the law itself is all-embracing since it does not specify or limit the scope. This has been recognized by judges and legal experts in general interpretation of the law. After a brief huddle with his two fellow judges Justice Gill gave the court’s decision: It was held that Judges’ Notes are not public documents. A distinction must be made between the official notes of evidence of a High Court hearing and the judges’ personal notes made in a court of appeal. A source was quoted which stated that the latter cannot be taken as a public document useable in further proceedings, since they are only meant to direct the attention or memory of the judge himself; they are not a complete or balanced record of the proceedings and therefore it would not be fair to use them for further proceedings. Based on this, the application for access to the Notes of Proceedings was dismissed. Returning to the issue of whether or not copies of the Notice of Alibi were given to the judges or not, Karpal reminded the court that the PP’s own affidavit had stated clearly that the notice had been served on the court and this necessarily included the Court of Appeal judges. PSG: I think we should deal with the issue of jurisdiction (whether or not the Court of Appeal has the authority to nullify its own decision). KS: Then do you admit that you received a copy of the notice? PSG: We have no record. KS: Then we will have to file the affidavit. The court was adjourned for the day. The hearing is to resume tomorrow morning, and the time for passing down the decision on the bail application on 21 January will also be given tomorrow.
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