FAC News

Saturday, 18-Oct-2003 9:44 AM

English language translation of Anwar Ibrahim's letter to the Chief Justice of Malaysia, 11 October 2003

To:

YAA Tan Sri Ahmad Fairuz Sheikh Abdul Halim

Chief Justice of the Federal Court

Kuala Lumpur

Via:

The Prison Director

Sungai Buloh, Selangor

Assalamu’alaikum…

With all due respect and greetings, I ask for YAA Tan Sri’s indulgence in reviewing the various points of contention of law outlined in this letter to you. I have decided to write directly to you after exhausting every reasonable avenue available. This includes the normal recourse through the courts, filing of appeals, making of open public statements and the continuous request for trial mention dates from the registrar.

Bail Issue Pending Appeal of my Second Conviction

I would like to begin with the issue of my request for bail that is still pending for four months at the Court of Appeals inspite of YA Judge PS Gill’s public announcement of its commitment to expediently pass judgement. It is rather unusual for a simple issue to be made complex when it comes to my appeal application. It appears that from the beginning the sitting Judges have denied my inalienable rights to bail. The normal procedure of oral submissions was disallowed. And even after written submissions were made with irrefutable strong reasons including reports on my deteriorating health condition, a decision has yet to be rendered.

Tan Sri would now be aware of the chaotic session of the Court of Appeals when Judges YA PS Gill, YA Richard Malanjun and YA Hashim Yusof rushed out unceremoniously in the middle of the public proceedings. The excuse announced was that they needed a few minutes to deliberate over points of law in private. It is only after the interjection in chambers of the lawyers and the Attorney General that the proceeding was resumed to its unjust conclusion.

A retired Federal Court Judge summed up the event when he aptly remarked that a simple legal procedure that could be concluded in less than half an hour by a magistrate cannot even be conducted let alone be judiciously concluded by the Court of Appeals.

And now, after reviewing the Court of Appeals’ judgement which is undeniably weak, shallow, without merit and in contradiction of every legal principles of law in the land, that our arguments for immediate bail is fully justified. Your assurance and commitment for an immediate much deserved hearing on this matter is highly appreciated and becomes duty-bound upon your kindself.

Federal Court Judgement Review of my First Conviction

About two very long years ago, I had submitted a request for a review of the Federal Court’s Judgement in regards to my conviction and sentence of my first (corruption) case in accordance to Section 137 of The Federal Court Procedures. Early this year Tan Sri agreed to the application by the Attorney General to postpone the proceedings in order to call for a seven judge bench to sit due to the overwhelming public interest shown in the case. The defense lawyers then concurred eventhough that this issue did not arise earlier in the proceedings, and at the same time you had given your unqualified assurance that the hearing will take place in June. Four months have since passed and we are still waiting for a hearing date.

Our application (for the review) has been further strengthen in light of new crucial information, namely in the form of Lawyer Manjeet Singh Dillon’s Affidavit. He clearly attested to the commission of questionable tactics and intent of Tan Sri Gani Patail and Dato’ Azhar Mohamad to maliciously and falsely implicate me in sexual misconduct through fabricated and coerced evidence.

Prior to this, the Federal Court had cleared my defense lawyer, Zainur Zakaria from a contempt of court charge brought forth by Judge Augustine Paul (on the same above-mentioned allegation). This clearly carried major implications for my own judgement as the Federal Court implicated both the above said prosecutors for the misconduct (as contained inby lawyer Manjeet Singh Dillon’s Affidavit) and even sanctioned Judge Augustine Paul for “acting more as a lawyer for the prosecution.”

More significantly, that the judgement demonstrated the truth of our earliest assertions of Judge Augustine Paul’s displayed bias and frequent contempt of court threats to frustrate the defense lawyers from carrying out their constitutionally enshrined duties. Among his numerous erroneous decisions was to conveniently disallow the prosecution’s shameless attempts to introduce evidence of my alleged sexual misconduct without providing the opportunity for me to refute them accordingly. This became quite damning in light of the then Attorney General’s (Tan Sri Mokhtar Abdullah) very own arrogant claims that he had irrefutable evidence in the form of conclusive DNA tests and the much-traveled mattress showcased to and from the court. And when the much touted DNA test was found to be unreliable and the glaring absence of any sexual misconduct evidence became known, the judge then chose to rescue the prosecutors by ordering the records on the prosecution’s sexual misconduct case line to be expunged. However, by then their real intention to malign me through the media (on sexual misconduct) was already achieved.

We can now conclude that the trial process was compromised and convoluted as seen from the acts of denying the defense witnesses their rights while accepting in total the prosecution witnesses’ false testimony including that of Dato’ Said Awang (the ex-Head of the Special Branch) who testified among other things, of his willingness to lie under oath if instructed by his superiors, especially instructions from the Prime Minister. The judge then would appear also to have succumbed to these same instructions as proven from the summary and cruel judgment that was eventually handed down. This is also when for the first time we witnessed the unprecedented judgement where the remand period of seven months was excluded from my sentence. This made judicial history.

Compound this with the speed and manner in which Judge Augustine Paul threatened and penalised not only Lawyer Zainur Zakaria but of my entire senior defense legal team of YM Raja Aziz Addruse, Aris Chris Fernando, Karpal Singh and Gurbachan Singh and contrast this with the Judge’s arrogant and overboard statements made in running down Aris Chris Fernando to the extent that he himself was eventually charged with contempt of court, which to date is yet to be tried, then we can find the seeds of gross miscarriage of justice being sowed blatantly.

Application for the Court of Appeals Judgement Review of my Second Conviction

Once again the world was shocked with the Court of Appeals judgement. It never occurred to us that the Honourable Judges in session were willing to lie and manipulate their findings. This is especially galling in the matter of the submission of the crucial Defense Alibi Notice document (by Messr Badian and Kartar) to the Prosecutors and Judges which was further made a public record in the Court of Appeals proceedings and by the Court Registrar was not only disallowed but claimed to be non-existent. This was conveniently done to support Judge Ariffin Jaka’s findings that I never submitted the appropriate Alibi Notice in line with Section 402A of the Criminal Trial Procedures.

It is highly unlikely and improbable for the Judges to claim confusion or honest misinterpretation. It is most likely that this was done with the sole purpose of upholding my sentence because if it was admitted, that the Alibi Notice existed and was submitted, then they cannot but find me not guilty and to free me. Then it would be necessary for us to deduce that they were not given the mandate (by the highest authority) to do so.

This has become their greatest mistake and fundamental flaw in compromising the trial process and denying me my rights as enshrined in our Constitution’s Article 51 that guarantees freedom based on the law.

And stemming from this great mistake and fundamental flaw, the Judges have built their erroneous arguments and false interpretations into their judgement that has severely handicapped my appeal efforts. Therefore, I must request that the Court of Appeals open a new review hearing to amend and make right this great mistake and fundamental flaw of law. It then becomes imperative that when Judges at the highest level err and act maliciously (as in this case) that, Tan Sri takes the necessary steps to correct them and make right all wrongs in accordance to the law with natural justice in mind.

The people’s sense of betrayal by the Justice System must now be salvaged. Therefore, I apply to the Federal Court to set the hearing date after the Court of Appeals hear my appeal review.

Appeals to the Federal Court on my Second Conviction

In the event when the Federal Court does hear my appeal, I must now with your permission present key arguments to support it.

The Federal Court must pass judgement based on Section 402A which allows me to submit my Alibi Notice based on the amended dates in the charges from May 1992 to between January and March 1993. The findings by the Judges that the Alibi Notice for the period in the original charge in 1992 alone is sufficient by itself is perplexing. It does not take any legal expertise to understand that there exist differences of time period between the original (1992) and amended (1993) charges. This would fundamentally require the relevant Alibi Notice in regards to my schedule and the status of the building as the location of the crime scene, to be submitted and to become the foundation for judgement.

One can imagine how shallow and out of context has been the arguments of Dato’ Ariffin Jaka and the Court of Appeals’ in regards to the need of an Alibi Notice submission when they cited Husin bin Silit Vs Public Prosecutor (1988) as their basis for judgement. In that case, the time difference in question is only for half an hour, where the charges time period was amended from 8.30pm to 8.00pm. The location of the building and the accused schedule might not have materially changed (in the half-hour period) but what would be the consequences of an Alibi based on a longer time difference (say 7 months) charge amendment?

Meanwhile the Court of Appeals conveniently chose to set aside the principle of law in regards to the appropriateness of the Alibi Notice as determined by the Federal Court in the landmark case of Ku Lip See V Public Prosecutor (1982). My lawyers have countlessly made reference to this case just to see it discarded by the Judges and by doing so they have done a disservice to the principle of justice and shown contempt for the Federal Court.

In this very crucial point of law, the Court of Appeals would rather demonstrate an incoherent line of thinking to the point of merely referring to a Canadian Federal Court ruling that denied the need of an Alibi Notice under such circumstances, eventhough it is acknowledged that Section 402A or its equivalent does not exist in that country.

However, the Judges instead did choose to accept Sukma Darmawan’s (the second appeal defendant) Alibi Notice based on the time period of the amended charges. Therefore, it would have been prudent and necessary to grant a 10-day trial adjournment, as the trial should be conducted jointly with me (and with the appropriate Alibi Notice). It would appear that there was no reasonable excuse to decide otherwise in this matter other than to intentionally derail the rule of law for obvious unprincipled motives.

The issue of the time period or dates to the amended charges has been widely debated by all parties including the public. Eventhough the amended time difference is obviously lengthy, the Judges decided simply to accept the prosecution’s contentions. To understand the reason for this overt manipulation, we need to see that this whole episode is an exercise of a sinister conspiracy originating from the highest level in authority. To support this accepted fact, we need only to look at the prosecution’s star witness, Azizan Abu Bakar’s sworn testimony that the dates for the charges was actually proposed by the police themselves especially in the person of SAC Musa Hassan. Before this, Azizan Abu Bakar testified three times repeatedly in court that he was never sodomised by me. After that, due to his testimony the charges was conveniently amended leading to the change in the dates contained in the charges from 1994 to 1992.

Meanwhile, we submitted our Alibi details proving that the Tivoli Villa building itself does not even exist yet which then led to the changing of the dates to 1993 with a 3-month time difference from 1992. This fact alone made it essential to scrutunise Dato’ Seri Mahathir’s public proclamation of my guilt which was loudly supported by the Attorney General Tan Sri Mokhtar Abdullah in court. If their proclamation of my guilt is based on concrete evidence, why then have it not been presented in the open court of law but instead they continued to make opaque insinuations? This is further compounded with Tan Sri Mokhtar’s over exuberance claims of being in possession of my entire events and travel schedule from 1992-1998. This is clearly a monumental lie as we saw that right to the very end of the trial not one iota of the supposedly concrete evidence was presented.

With all the limitations imposed from prison, I have made unrelenting efforts with my lawyers to obtain the much-vaunted events and travel schedule for the duration stated in the charge sheet and was able to account for and refute my alleged presence at the said scene of the offense. At the same time, Sukma Darmawan presented statements from witnesses, documents and official receipts that proved beyond a shadow of a doubt that the condominium in question was still under renovation and not as completed and furnished as alleged by Azizan Abu Bakar.

However, all our righteous efforts were in vain. The judges had in fact already decided on my fate, searching to grasp for the merest of evidence and excuse to pass the scripted judgement of guilty. Herein lies the crux of the people’s doubts and disbelief of the judiciary which reminds me of a line in Alice in Wonderland that goes like this;

“No! No! Sentence first – Verdict afterwards!”

All the contradictions inherent in Azizan Abu Bakar himself, including his own persecution and sentencing in a Syariah Court case of sexual misconduct did not for one moment cast any doubts in Dato’ Ariffin Jaka’s mind of Azizan’s character and credibility. This was attested by his overeager remarks of Azizan’s infallibility and testimony that should be found as solid as the Rock of Gibraltar. However, the Judge managed to disguise this true sentiment of his to the point of distracting everyone with his assertion that Azizan is an unreliable witness in the early phase of the trial by, “saying something today and something else the next day.” And what is even more unbelievable is the willingness of the Court of Appeals Judges to acknowledge the validity of that statement being made. But instead it was casually trivialised and dismissed as irrelevant in establishing a witness’ credibility as if it was insignificant like specks of sand on a beach!

The antics of the Judge confirmed our concern that he must be disqualified from sitting on the trial. Our reason at that time was that the Judge had a conflict of interest, as he is a beneficiary to his own shareholdings in Dataprep, a company belonging to one Mirzan Mahathir. He was the son of none other than Dato’ Seri Dr Mahathir who perpetrated this despicable conspiracy against me leading to the gross abuse of the police, prosecution and judicial institutions. The Judge failed to inform of this conflict of interest not until the Defense Lawyers revealed it in public. This in fact contravenes Section 20 of the Court Judicator Act 1964 which requires him to inform the Chief Judge of Malaya on this matter at the earliest opportunity.

Our concern of his impartiality was further confirmed when the judge chose to shield Dato’ Seri Dr Mahathir who ignored the sapina on his own accord to be present as a witness in the trial. This is crucial as he was in fact the main witness who openly made the first allegations against me. And by simply ignoring the sapina he has deprived me of my rights to seek the necessary testimony for my defense. This also deprived me of the opportunity to proof the damning lingkages between him and Tun Daim Zainuddin and Dato Aziz Shamsuddin in this whole unholy conspiracy.

The Court of Appeals Judges was also negligent and was misdirected in setting aside Section 418A of the Criminal Procedure Code which stated that any charges transferred cannot be amended after the start of the trial. Unfortunately, the Court of Appeals chose to ignore the need for a fresh Alibi Notice due to the amended charges that involved a period of many years differences and continued to stubbornly rely on Hussin B Silit V Pp (1998) which only involved a half-hour time difference in the charges. Choosing to make such inferences to this, just for the sake of making a reference, even though how ever fragile, irrelevant and trivial it may seem borders on clear negligence of the highest order.

The Court of Appeal also trivialised the allegations made against the two senior prosecutors, which involved criminal acts of attempting to obtain false evidence. This decision is flawed as it is in contempt of the Federal Court ruling on such matters. This was done to the extent of dismissing Lawyer Manjeet Singh Dillon’s Affidavit as mere “opinion and personal conclusion.” Again this is definitely in contradiction with the testimony of his client Nalakaruppan who did not want to lie and fabricate evidence as demanded by the two prosecutors. The Court of Appeal’s manipulation went to the extent of providing their perverted view that the fabrication of names of women to be implicated in my sexual misconduct has nothing to do with the case being appealed. It is indeed unfortunate that the Judges chose to avoid addressing the primary point of contention that the prosecutors attempted to obtain false and fabricated evidence. This attempt to protect the two prosecutors who used the threat of capital punishment against Nalakaruppan if he fails to be a willing partner in the fabrication of evidence is a crime. Who else would be the protector of justice if the Judges fail to be vigilant and take the necessary actions against such abuse of authority by the police and prosecution?

Quis Custodiet ipsos Custodes?

After reviewing in detail the judgements and events leading from 1998, then it becomes clear that there was meticulous planning for my trial and the punishment to be rendered.

Judge Augustine Paul was selected to handle my case bypassing other much more senior judges. This also was the first time that we saw the defense witnesses being ignored, their testimonies expunged and threats being widely used. The judge’s often mentioned “not relevant” remarks during the proceedings became a common public refrain that the court too was not relevant. This led to my lawyers bringing up the issue of malafide , the malicious intentions of the judge, from the earliest opportunity available and to apply that the Judge excuse himself from the trial.

St.Augustine provided the maxim of audi partem alteram; the readiness to listen to all parties to ensure justice is done. He added that to deny the truth is a crime and “if justice is extinguished and stolen, then the ruler becomes a great thief.”

Meanwhile, Judge Dato’ Ariffin Jaka is observed to be fond of profanities and is easily irritable, which precludes him from the prerequisite of being a Judge as surmised by the great philosopher, Socrates; “To listen carefully, to answer wisely, to deliberate calmly and to judge fairly.”

The Judge’s predisposition against even common decency was evident when I began to quote Saiyidina Ali bin Abi Talib’s advice to the Governor of Egypt, Malek Ashtar in regards to justice, burden of proof, the role and criteria of the Qadis or Judges and on the credibility of witnesses, that drew his terse response that the principles of the Shariah Courts and Islam has no bearing or relevance on the trial. I immediately provided a rejoinder that all sources of legal experiences must be used to seek justice, which generally has included English and Indian Common Law, and to which one must not feel anxious in also referring to Islamic sources too.

By right we should also reflect on Allah’s Quranic injunction “..and let not the hatred of others to you make you swerve towards wrong and depart from justice.” (alMaidah: Verse 8)

It was based on the overall balance of the facts and the sequence of events (of the Judge’s predisposition and behavior) as described above, which led me not to ask for leniency on the harsh sentence passed during mitigation. When the law is trivialised, true arguments are cast aside and added to my firm belief that the Judges are following a prepared script, then what remains during mitigation is only my right to state my stand on the whole conspiracy. The following Judges used these statements of mine to rebuke me without even referring to the substantive points of law raised let alone on justice that was sacrificed (in the interest of the wicked few).

YAA Tan Sri,

From the beginning I have stated that I am innocent and am but a victim of the political maneuvers of those in power. In this struggle between a Prime Minister with absolute power, it becomes difficult for me to envision justice being done. His reach even touches and tarnishes the judiciary in ways that are detrimental to all. This fact has been consistently mentioned by me to both the High Court Judge and subsequently at the Federal Court in the presence of Tun Dzaidin Abdullah himself, in his capacity as Chief Justice. The appointment of Tun Dzaidin brought initial hope to a nation who had lost their confidence in the judiciary. In fact, he even proclaimed his intention to quickly repair the judiciary’s tarnished image. Alas, it proved to be just empty rhetoric and the expectations of positive change was betrayed. It was indeed a false dawn.

My stand on the comprehensive crisis enveloping the Judiciary especially at its apex, was made clear when I applied that the then Chief Justice, Tun Eusoff Chin be excused from sitting in on my hearings. I provided irrefutable evidence including that of allegations of corruption, the critique of senior Judges, the adverse report of senior Judges to the Prime Minister along with an International Judiciary Body report, all revolving around the Chief Justice’s improprieties. (I had submitted my statements made in the Federal Court and the other courts separately for your attention)

Now, I have chosen to write and request Tan Sri’s intervention to review all the matters presented with the common intention to uphold the principles expounded in the Constitution, to the sanctity of the Law and that the Judiciary is the last bastion for justice. It requires uncommon courage and unshakable commitment to rebuild this august body to be free and credible again. In the midst of today’s dark clouds covering the brightness of justice, I am sincerely aware that justice will be hard to come by. God Willing, with the impending clearing of this bad weather and the renewed spirit of freedom advancing like the wind, we shall all witness a more convincing and constructive change unfolding.

It is also hoped that my applications for a review, appeal and bail will not be further delayed.

Your kind consideration of the facts presented in this letter is highly appreciated.

Thank You.

May Allah grant Strength and Guidance to all.

Wassalamu’alaikum

Sincerely,

Anwar Ibrahim.

11 October 2003/ 15 Sya’ban 1424

Copy to Panel of Defense Lawyers

FURTHER READING:

1. Introduction to the Anwar Ibrahim Appeal Hearing

2. FLASHBACK – The Kangaroo Court that tried and convicted Anwar