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Tuesday, 11-May-2004 7:26 PM ANWAR IBRAHIM Day One of the Appeal Hearing in the Federal Court 10 May 2004 The Bench: Abdul Hamid Mohamad Rahmah Hussain Tengku Baharudin Shah Tengku Mahmud Counsel for the Appellants: Christopher Fernando Karpal Singh Prosecution: Abdul Gani Patail Yusof Zainal Abiden Tun Majid Hamzah Watching brief for Malaysian Bar Council: Malik Imtiaz Sarwar Ang Han Leng Foreign Observers: Marzuki Darusman (Inter-Parliamentary Union/former AG of Indonesia) Desmond Fernando (Chairman, Sri Lanka National Commission of Jurists/ former President of International Bar Association) Mark Trowell QC (Australian Bar Association/International Commission of Jurists) Christopher Fernando (CF) began the proceedings by attempting to introduce the three foreign observers, however Justice Abd Hamid Mohamad (AHM) interrupted him saying it was unnecessary as they have no role in the court. He did not agree with CF’s suggestion that the court should show them due respect since they had come from far afield just to attend the proceedings. Justice Abd Hamid further questioned the necessity of the presence of 2 lawyers holding a watching brief for the Malaysian Bar Council. “Is the Bar Council a party to this case?” Christopher Fernando then stated his intention to call on Justice Abd Hamid to recuse himself from the hearing. HM: OK. We’ll note it down. Fernando then enquired whether Abd Hamid wished to conduct the hearing (on this point) in chambers or in open court, to which the judge responded that it would be necessary to consult the Chief Justice on the matter. He asked Fernando why the defence had not made the application earlier. Fernando replied that they were not informed of the quorum of judges before the hearing. Justice Abd Hamid then adjourned the court for 15 minutes to enable them to consult the CJ. When the court reconvened, Justice Abd Hamid referred to Fernando’s earlier attempt to introduce the foreign observers to the court and have their presence recorded. He reiterated that this was not necessary, since their function was merely as observers; nevertheless, their presence was welcomed as Malaysian courts are open to all whether Malaysians or foreigners. He then moved to the matter in question, namely whether he (AHM) should recuse himself from the hearing. He understood that this submission was based on a remark he had made in a different case. It had been decided to hear it in open court. Fernando then proceeded with his submission, referring to the Justice Abd Hamid’s judgment in the appeal against the sentence passed on Dato’ Wa’ad Bin Mansor (2003), whose offence had been similar to that in Dato’ Seri Anwar’s first case (using public position for personal pecuniary or other gain). Justice Abd Hamid had specifically compared respective sentences in the two cases (DSAI was sentenced to 6 years’ jail, whereas Dato’ Wa’ad was fined RM15,000). CF: Your Lordship made a disturbing comment in your judgment when comparing the two cases and finding that there was sound reason for such contrasting sentences. You said that Anwar’s case had posed a threat to public order whereas Wa’ad’s case had not. AHM: But you must see this in the full context. This is about sentencing [not whether guilty or not guilty of the offence]. The two cases cannot be compared just like that because they were radically different, and there cannot be standard sentences for all. Anwar attempted to pervert the course of justice – he played an active, deliberate role – whereas Wa’ad’s offence was merely passive. Therefore Anwar’s case can be said to be a threat to public order, whereas Wa’ad’s cannot and thus the two cases cannot be compared. CF: Your Lordship’s argument that Anwar’s case represented a threat to national security and public order is a strong, uncompromising and prejudicial statement. It indicates that Your Lordship thinks that Anwar is a security threat and a subversive element and deserves the 6-year sentence meted out to him. Therefore there is a real likelihood of bias against him on your part and that you will not, in the circumstances, be able to give him the fair and impartial hearing he is entitled to. There is a serious and genuine concern that you will not be able to erase this negative or bad impression of him from your mind. It must be further appreciated that Anwar has still not exhausted his rights of appeal for that first case. The application for a review of that case is still pending before the Federal Court. It had been fixed for hearing some time last year, but was postponed because the prosecution had requested that the matter be heard before a 5-man quorum, which was not available at that time. We are still awaiting a new date. With due respect, allow me to quote Lord Denning: “Justice is rooted in confidence, and confidence is destroyed if right-minded people go away thinking that it was compromised.” Fernando then submitted that Tengku Baharudin should also recuse himself. CF: It seems improper that you, as a junior Federal Court judge, should be asked to sit in judgment of a decision made by your senior. The appeal judge was Justice PS Gill, a judge very much senior to you, and is your superior who now sits in the Federal Court. This is an anomalous position, My Lord, and it is submitted that it cannot be considered right. HM: But it often happens… CF: This is a special case. HM: In the Court of Appeal it has happened. Also, when the Chief Justice was appointed over others obviously judgments he had made earlier would be reviewed by others who are now his juniors. CF: That is inevitable due to the nature of his appointment. In this case there are more senior judges available. It is anomalous, improper when a junior judge has to decide on his senior’s judgment. It is an affront not only to natural justice, but also to common sense. It is like a student being asked to judge his lecturer’s work. Anwar must be guaranteed a fair and impartial hearing. Justice must not only be done, it must be manifestly and undoubtedly seen to be done. Fernando went on to argue that the integrity of the judicial system itself was also at stake, and therefore it was in the judiciary’s own interest to heed the appellant’s application. With public confidence now at its lowest ebb, a mistake in deciding this matter could make it worse. CF: It should also be kept in mind that Anwar has experienced untold suffering and humiliation throughout, beginning even before the trial. HM: It is not necessary to mention this here.. CF: He has since undergone two of the most unfair trials in the history of Malaysia HM: I don’t think there’s any need to mention this… Fernando protested that it was indeed relevant since it related to confidence in the judiciary. The two trials were condemned around the world as being manifestly unfair. He reminded the court that this is the appellant’s final chance to clear his name and gain his liberty. He deserves the best opportunity. He also drew the court’s attention to the joint statement by three international bodies, that judicial independence in Malaysia has been a serious concern, and that the present hearing is a tremendous opportunity to squarely rectify this. The report by the ICJ in conjunction with the International Bar Association similarly noted the “severely compromised justice” in Anwar’s two trials. CF: I assure Your Lordship that there is nothing personal in this application. It is in the best interests of justice and the good name of the judiciary, and to ensure a fair chance for my client. Gani Patail (GP) for the prosecution now responded. He submitted that it is not true that this is the final stage of appeal for Anwar, but was interrupted by Abd Hamid, who advised him to concentrate on the question of whether or not he, the judge, should recuse himself. Gani submitted that Anwar’s case which is the subject of this appeal had no connection to Wa’ad’s case, being a totally separate case from the earlier one. Even in comparing Anwar’s first case with Wa’ad’s case, there was a clear difference: Wa’ad’s offence was passive, a failure to leave a meeting room when a matter of personal interest to him was being discussed. There was no element of threat, violence or force, and therefore no threat to public order. On the other hand, in Anwar’s case there was a disturbance of public order. There was, therefore, a clear difference between the two cases and the Abd Hamid’s remarks should not be seen as personal but merely a statement of fact and thus not compromising. Gani reminded the court that Justice Lamin had also commented, in his judgment rejecting Anwar’s application for bail, that Anwar posed a threat to national security. On the issue of Tengku Baharudin, Gani submitted that there is no rule disallowing a junior judge from reviewing a senior judge’s judgment. Since Tg Baharudin has been appointed to the Federal Court of Appeal, this indicates that he is fully competent. At Federal Court level there is no such thing as “senior” or “junior” judges, with the length of service at that level not bearing any significance. GP: In fact this is a test of their independence. All of them should feel free to make their respective judgments based on the facts and the rule or principles of law. It sometimes inadvertently happens that a Federal level judge may have to judge on a matter decided by a senior judge when the latter was in a lower court. There have been a number of instances and there have so far been no objections from any quarter. Gani repeated that this hearing is not, as claimed by CF, the appellant’s final avenue of appeal, for there are almost limitless opportunities for review. He urged the court not to do anything to upset or interfere with the independence of the court. At this point Malik Imtiaz Sarwar (holding watching brief for the Bar Council) asked permission to speak, saying that the question of recusion of judges was of interest to the Bar Council. The judge, however, rejected his request and asked Fernando instead to respond to Gani’s submissions. CF: I am not saying Your Lordship was wrong. I am just saying that you have a preconceived idea of Anwar’s guilt. AHM: Is it not a fact that Anwar’s behaviour was a threat to national security? CF: You cannot say he deserved 6 years’ jail because he was a threat to national security. It should have been based on facts. AHM: How can a judge make a judgment without referring to facts? CF: But you must prove this. Which facts? The facts do not show this. AHM: One has to see the whole grounds of the Court of Appeal judgment, examine the facts. CF: But Your Lordship made the comments during another trial, before examining the facts (of Anwar’s trial). Fernando then commented on GP’s mention of Justice Lamin’s remarks on Anwar, saying that it had no connection to the current matter at hand. What is relevant is Abd Hamid’s own comment, which shows prejudice. Impartiality of a judge is essential; judges must be in the forefront in adhering to rules of justice. The court adjourned at 11.30 am for the judges to consider the submissions, and reconvened at 2.40 pm. AHM: There was an application requesting that two judges should recuse themselves. I will now answer for myself, and then Tengku Baharudin will answer for himself. It was submitted that because of purportedly prejudicial comments I had made in my judgment of another case that in the present hearing the appellant would not get fair treatment. In fact Anwar’s case was only one of several I referred to, and in Wa’ad’s case I declined to follow any of them. Each had to be decided on its own merits. The judgment was on sentences and not on convictions, and Anwar’s case was mentioned only as an example. It was not only I but also the other two judges on the bench who found material differences between the two cases. We found that Anwar’s case had disturbed public order. Wa’ad did not get a custodial sentence because no threat was posed to public order. I did not say that Anwar deserved 6 years. It was accepted as fact that the Federal Court had agreed with the sentence. It was the case which had caused a disturbance of public order, not Anwar himself. Judges are advised that the judgment of an earlier case should not affect a new case. I may have formed an opinion, but when I hear submissions in this present hearing I may change my mind, after reviewing the facts. I will keep an open mind, give him a fair and unbiased hearing and arrive at an honest judgment. If I felt I could not be open-minded, fair, I would recuse myself, but I feel that the fears of the appellant are unfounded and hereby reject the application. Tengku Baharudin (who spoke entirely in Malay) touched on the subject of a junior judge reviewing a senior’s judgment, and found that the submissions on behalf of the appellant were unfounded. He said that it has been a practise not only in Malaysia but also in other countries. He was confident that he would be able to undertake the task without any problem. I therefore reject the application that I should recuse myself. At this point Anwar stood up to say that he was deeply disappointed with the decisions and as a result had lost confidence in the bench. In consequence he was strongly inclined to withdraw his appeal. AHM: You have no right to speak yourself. We will adjourn so that you can consult your counsel and they will speak to us on your behalf. The court was adjourned for about 15 minutes for this purpose. The lawyers, Anwar himself and his family members had an intense and emotional discussion on the matter. When the court reconvened Fernando told the court that Anwar had been adamant in his desire to withdraw his appeal, but had been persuaded to continue with it after all. The appeal hearing could therefore now proceed. AHM: (to Karpal Singh –KS) Are you going to be arguing on the same point. Why not on the facts considered by the Court of Appeal..? I’m just thinking aloud. Normally one sticks to the facts of the appeal. Karpal said that because there had been a misdirection, it was necessary to go back to the facts of the case. The judges had denied something from the actual case and this was his main point. KS: If the prosecution can concede that the notice of alibi was indeed served then we can proceed on that acknowledgment. AHM: At what stage (was it served)? KS: During the hearing. Tun Majid (TM) explained that there was no record of the application to file a fresh notice. It is, in fact, not a requirement that it should be mentioned. AHM: If both the prosecution and the defence say it was served and the judges say it wasn’t, then clearly the judges were mistaken. But what, then, is the effect? KS: It was claimed in the judgment that no notice was served, and there was no application to file the notice, therefore the court was misdirected. AHM: It is not a significant problem. KS: I just want them to acknowledge.. HM: Since they filed an affidavit on the matter, is this not sufficient? KS: It is important for this to be clarified formally as part of this court hearing, including that the Court of Appeal was informed that the notice was served. We cannot proceed without this being stated clearly. Tun Majid agreed with this statement, but Gani Patail interrupted to say that this was not the issue, since the bench had merely said that they had no recollection. Gani then read out the relevant passage from the affidavit which stated that notice had been served before the trial and the court informed. Karpal insisted on adding “..according to the law” (for the records of this hearing), but Gani was not willing to do this without first referring to the records. Karpal insisted that it was important (over the objections of the judge). “There is no point in saying that the notice was served, and later arguing that it was not served in accordance with law.” Before the court was adjourned for the day, Karpal made a further attempt to have the presence of foreign observers recorded. Once again the judge was reluctant, saying that NGO’s and so on, anyone in fact, can come to the court, so why should it be recorded. KS: They are not from NGO’s, My Lord, but representatives of respected law organizations. If similar representatives from Malaysia attend court hearings overseas, not only is their presence recorded, but they have even been invited to sit together on the bench. Fernando added that it (recording attendance of observers) has been done before. GP: It is not proper. It is only for those holding watching briefs, who represent a specific individual or group who have an interest in a case. What is the role of these people? It is just to check the transparency (in general). Furthermore there is no law saying it must be recorded. CF: We will make an application again tomorrow. The court was adjourned at 4.00 pm.
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