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Thursday, 22-Jan-2004 11:34 AM THE ANWAR IBRAHIM HEARING: 20 January 2004 COLLECTIVE AMNESIA Animah Annette Ferrar The day began with a long wait. People who came at 9.00am (including Anwar's wife) found that the proceedings were due to start only at 10.30. At least the canteen - the only place as far as the eye could see to get anything at all to eat or even drink - enjoyed brisk business. There was further waiting in the courtroom, as the two sets of counsel went to the judges' chambers to discuss the matter of the latest affidavits. The proceedings finally commenced at 12.15. The proceedings were to focus on the contentious issue of whether or not Anwar's Notice of Alibi was served on the court. This matter is of major importance, since the alleged failure to submit it was cited as one of the main grounds for rejecting Anwar's appeal. Karpal Singh opened by saying that the court now has no less than 4 affidavits to consider - that filed during the appeal hearing by the prosecution team's Tun Majid, which acknowledged that the disputed Notice of Alibi had indeed been submitted to the court; an affidavit by Karpal himself and another by counsel Sankara Nair, both stating that the defence team had submitted the Notice of Alibi to the court; and, just filed, an affidavit by Mohd Firdaus for the Court Registrar claiming that there was no record of the court receiving the notice. In short, three yeas and one nay. Karpal appealed to the judges to reconsider their decision (19 January) to dismiss the defence application to have access to the Notes of Proceedings. These Notes had become very significant, and the judges' decision had very far-reaching and serious consequences. Karpal was making this renewed appeal during this present hearing since there was no other avenue of appeal in this matter. Karpal disputed the Court Registrar's affidavit which quoted a case from 1888 (not 1988, but 1888) in which judges had been forbidden from taking down notes during the proceedings. Karpal said that this ruling had clearly been superseded by a much more recent ruling. In the law and in the practice of justice the judges' notes are considered part of the Notes of Proceedings KS: I ask Your Lordships once again to either confirm or deny that you received the Notice of Alibi. PS Gill (head of team of judges): We have no recollection and no record. KS: This means, My Lord, that you are saying that Sankara Nair and I, and also Tun Majid, are all lying in our affidavits. PSG: We are merely saying that we have no recollection. (Anwar Ibrahim later privately labelled this "collective amnesia"). KS: If we were allowed access to the Notes of Proceedings we would be able to show that we did indeed submit the Notice of Alibi. Justice Gill said that the judges would give their response to the affidavits. Karpal reminded the judges that their decision was very serious because it would become binding on many other cases after this. After the lunch break Karpal Singh continued his submission. He emphasized that granting access to the Notes of Proceedings was a crucial issue, since they were needed to set the record straight. The appellant should be given every opportunity to prove his claim that the Notice of Alibi was indeed filed. Karpal referred to the court's dismissal on 18 April 2003 of a Notice of Motion by the defence, which had resulted in the judges failing to give proper attention to the issue of the alibi. In order to redress this failure the court should now re-open the hearing. While the Federal Court could also hear on this matter, refusal of this court (of Appeal) to re-open its hearing would deprive the appellant of one tier of the appeal process. If this court had made an error, it should rectify the mistake itself. "It is our submission that this court has the jurisdiction to re-open a case which has already been disposed of." He cited the Rules of Appeal (1994), the Civil Law Act (1956) and Rule 137 of the Federal Court Rules (1995), which together encompass various levels of courts and allow courts to "re-open", "re-hear" and "re-examine" cases for the purpose of removing flaws which cause injustice. The sources stated that "It [the flaw] must be dealt with [by the court in which it occurred]." Karpal continued that the Commonwealth Law (or Common Law, which is followed in peninsular Malaysia) gives inherent jurisdiction and power to a court to correct its own mistakes in order to prevent injustice, to put matters right. Although this a provision limited to certain cases, the case now being discussed surely qualifies as such. Gani Patail now submitted that the Notice of Alibi was not actually of great importance in the judgment, and thus whether or not it was given to the judges is similarly not very important KS: This is about jurisdiction, not about whether or not it was important in the judgment. GP: But I still feel it necessary to point out this fact to Your Lordships. KS: Not relevant here! Gani then submitted that an authority had ruled that the Supreme Court (now known as the Federal Court) has no jurisdiction to re-open a case after a final decision has been made. He fully appreciated the need to maintain confidence in the process of justice, but said that firstly, it must be clearly established that significant injustice had occurred; and secondly, there must no other channel available to correct the injustice. In this case the appellant has another such channel, namely the Federal Court. KS: My learned friend is again talking about merits, not about jurisdiction. GP: But by showing the merits or otherwise, I am showing that there is no reason to exercise the jurisdiction, because the compelling criterion is not fulfilled, and the appellant has another avenue of appeal. At this point Gani seemed to encounter a dead end in his own argument and after a few moments of awkward silence moved on to a new point. He claimed that the argument that if the Court of Appeal failed to re-open the hearing Anwar would be deprived of one tier of the judicial process was a fallacy. It is normal that, as you proceed from one tier to another, of course you lose a tier at every step. "We can't simply ask for a case to be re-opened each time we are not happy with the court's decision. If we go by my learned friend's argument, there will never be any finality - there will be endless re-openings and reviews." Karpal Singh now responded to the prosecution's submissions, saying that while they thought their citing of as many as 26 cases gave their arguments great strength, in fact it only showed their weakness. This was because nearly all the cases cited had only the flimsiest relevance to the case at hand, as if they were really scraping the barrel. They were also apparently totally unaware of a number of major authorities on the matter. For instance, in one of the cases cited, a final decision had been made and the court declined to re-open the hearing based on the facts of the case, not because there was no jurisdiction. If there had been no jurisdiction, they would not even have considered the application to re-open. Karpal also mentioned two important decisions by panels of senior judges, including, in both cases, Steve Shim and Dato' Haidar, in which it was ruled that an application to re-open a case could be entertained in order to prevent injustice or to correct it when it occurs. It was only to be rejected if there was no indication of injustice. End of submissions. Court adjourned.
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