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Monday, 10-May-2004 10:40 PM First day of the Anwar Ibrahim appeal hearing The long-awaited Anwar Ibrahim appeal hearing against his second conviction and nine-year jail sentence for the alleged crime of sodomy kicked off at the Federal Court in Putrajaya, Malaysia’s swanking new administrative center, today. Anwar is represented by a team of eight solicitors: 1) Christopher Fernando (Lead Counsel) 2) Member of Parliament Karpal Singh 3) Pawancheek Merican 4) Sankara Nair 5) Zulkifli Nordin 6) Saiful Hizam Ramli 7) Kamar Aniah 8) Marisa Fernando The three judges are: 1) Abdul Hamid Mohamad 2) Rahmah Hussain 3) Tengku Baharudin Shah Tengku Mahmud Other than Ambassadors and foreign embassy representatives, international observers were also present to monitor Anwar's trial: 1) Marzuki Darusman, Inter-Parliamentary Union (IPU), Indonesia’s former Attorney General; 2) Desmond Fernando, Chairman of the Sri Lanka National Commission of Jurists, Former President of the International Bar Association (IBA); 3) Rajiv Dawan from India, International Commission of Jurists (ICJ) 4) Mark Trowell, QC, Australian Bar Association and International Commission of Jurists (ICJ) Plus representatives from the Malaysian Bar Council were also present to hold a watching brief on behalf of the Council. Earlier, Anwar’s solicitors had requested a five-member panel of judges but this was turned down by the court. Christopher Fernando started by telling the court that they were objecting to the panel of judges on grounds that Abdul Hamid Mohamad may be biased and may not be able to give Anwar an impartial hearing. Abdul Hamid had once presided over a case in the Seremban High Court where a Negeri Sembilan State Assemblyman, Waad Mansof, was charged and tried for corruption under Ordinance 22, the same provision of the law in which Anwar had been charged on his first conviction. Waad, however, was only slapped with a fine though his crime involved a substantial monetary gain. Anwar, instead, was given a six-year jail sentence though his alleged crime did not involve any monetary gain. The prosecution was most unhappy with the slap-on-the-wrist sentence handed down on Waad and they protested the extremely light sentence citing the Anwar Ibrahim case as justification for asking for a heavier sentence to be imposed on Waad. Abdul Hamid, on defending his light sentence given to Waad, argued that Anwar’s case involved national security and public order while Waad’s was a simple case of corruption. Since Anwar too was charged for corruption or abuse of power, which had nothing to do with national security or public order, how the judge came to this conclusion is most perplexing. Nevertheless, Abdul Hamid was convinced Anwar is a threat to national security and public order, therefore it is justified he be given a heavier sentence of six years while Waad should only suffer a token sentence. Seeing that Abdul Hamid had already prejudged Anwar even before hearing the case, he should therefore recuse or disqualify himself from hearing the case. “Justice must not only be done, it must also manifestedly and undoubtedly be seen to be done,” argued Fernandor, and in the present circumstances there are doubts whether Anwar will receive justice seeing that the judges have prejudged him. As if to confirm that he did think Anwar is guilty and has not changed his mind on the matter, Abdul Hamid asked Fernando whether it is not true Anwar’s case involved national security and public order? Further to that, the judges are all very junior and it would not be appropriate for them to decide on a case that had been decided by more senior judges. There are in fact three other judges more senior to Abdul Hamid while Rahmah Hussain is way down at number 12 on the seniority list. To make matters worse, Tengku Baharuddin is not even a Federal Court judge and had no business being there when there are 15 other judges above him. Tengku Baharuddin, in light of his extremely junior position, too should recuse or withdraw to allow other more suited and senior judges to hear the case. The Attorney General, in replying to Fernando’s arguments, said that Waad’s case is a simple case of “not leaving the room” when a meeting he was chairing to consider a matter financially beneficial to him was being held. In a way, there was no actual crime. This explanation almost had the public gallery in stitches. This is the same man who at one time recommended that the International Trade and Industry Minister, Rafidah Aziz, be indicted for corruption “for not leaving the room” when a meeting she chaired deliberated on some shares that were supposed to be allocated to her son-in-law. Then, he thought it was criminal enough to press charges against the Trade Minister and it was only the intervention of the then Prime Minister, Dr Mahathir Mohamad, which saved Rafidah from being sent to jail. The three-member bench then adjourned to deliberate on the matter but when the court reconvened after lunch Fernando was told they would not withdraw or disqualify themselves from hearing the case. Maybe they already have preconceived notions about Anwar’s case, they explained, but they could still change their minds after hearing the evidence. In short, the judges admit that they have already formed an opinion even before they have heard any submissions from both sides. But there is always a chance they could change their minds if the defence is skillful enough in putting forward its case. In other words, what the judges are saying is, never mind if we already think Anwar is guilty. Convince us otherwise. Outraged at this apparent pigheaded stand by the judges, Anwar stood up and said that if the judges refused to withdraw then he would instead do so. He would withdraw his appeal and would have nothing more to do with these judges. “I am considering to withdraw the appeal as I have no confidence with the judges who are to hear my appeal. I see no point in continuing these proceedings. Your Lordships surely understand my predicament, as my counsel’s arguments were not even properly addressed. What we are saying is that why more senior and qualified Federal Court judges were ignored," Anwar shouted from the dock. Abdul Hamid tried cutting Anwar short and told him to address his lawyers and let his lawyers instead relay his decision to the bench. But Anwar would not be silenced and he continued, “It is a foregone conclusion. It is a facade. There is not going to be a fair trial.” When Anwar refused to clam up, the court adjourned to allow Anwar some time to confer with his lawyers. When the court reconvened, Fernando told the court that they have managed to persuade Anwar not to withdraw his appeal and to go on with the hearing. Karpal Singh then took over and argued on a point he felt was most crucial to the case, and this is the Notice of Alibi, which is a statutory requirement under Section 402A of the Criminal Procedure Code. It is in fact mandatory that this Notice be filed ten days before the trial and the court is obligated to allow an adjournment to enable it to be filed. The trial judge then, however, refused to allow the adjournment. Nevertheless, the Notice of Alibi was filed. Yet the trial judge denied receiving it though Affidavits were submitted as proof it was filed and the prosecution too admitted they had been served a copy of the Notice, which the prosecution believes the court too was in receipt of. Abdul Hamid then asked Karpal what difference it made and in what way it would effect the decision of the court? Karpal then explained that the court’s judgment was made based on the fact that no Notice of Alibi was filed so it certainly has a strong bearing on the verdict and is therefore a crucial issue. The court then adjourned and will reconvene tomorrow when the issue of the Notice of Alibi will be considered and whether there is any serious error on the part of the trial judge plus the Court of Appeal in overlooking the fact that it had in fact been filed, thereby rendering the court’s decision defective.
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