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Wednesday, 19-May-2004 5:00 PM The Anwar Ibrahim Appeal Hearing Day 6 Today, the sixth day of the Anwar Ibrahim Appeal and Bail Hearings, was the prosecution's turn to rebut the issues that the defense had raised over the first five days from 10 to 14 May 2004. The Attorney General (AG), Gani Patail, kicked off the morning session by addressing the issue of non-compliance to Section 402A of the Criminal Procedure Code, which the defense had been harping on at great length the whole of last week. Anwar’s counsels had brought to the court’s attention that Section 402A of the Criminal Procedure Code is a mandatory provision that must be complied with and the court has no prerogative in the matter. Under this provision of the law, the court is obligated to allow a ten-day recess to enable the defense to file its Notice of Alibi. The court, however, had refused to allow this recess and said that the earlier Notice of Alibi filed on the pre-amended charge was sufficient and no new alibi was required. The defense disagreed on grounds that the original alibi was meant to cover an offense allegedly committed in 1992 while the new charges stated that the offence was committed in 1993. How could an alibi accounting for where you were in 1992 explain where you were in 1993? Section 402A of the Criminal Procedure Code is not meant to help the defense but to help the prosecution, explained the AG. This is to enable the police to investigate the alibi of the accused and to establish whether there is indeed a case against him or her. This would then save time and avoid a lengthy trial in the event there is no case against the accused. Compliance to Section 402A of the Criminal Procedure Code is not a necessity, said the AG. It is only meant to assist in the investigation of the alibi of the accused. Since the police had already investigated Anwar's alibi, there was no longer any need to investigate it further, so the Notice of Alibi was therefore not required, contended the AG. The prosecution's reasoning is that Section 402A of the Criminal Procedure Code is merely directory and not mandatory. At this point, Justice Abdul Hamid Muhammad interrupted Gani and asked whether one could go so far as to say that one could even disregard Section 402A entirely? The judge’s retort invited murmurs from the public gallery as it appeared like the bench was trying to help the prosecution along. On the point the defense raised that it had asked the trial judge to disqualify himself from hearing Anwar’s case because he had substantial shares in the Prime Minister’s son's company, the AG said, just because the judge had business links with the Prime Minister's son did not mean he would become biased and therefore had to recuse himself. Clearly Gani did not think the judge’s business involvement with the Prime Minister’s son is a conflict of interest, which may prejudice his decision. Gani then touched on Sukma's confession and the point raised by the defense that he was coerced or forced into confessing. Gani did not believe this was what happened, probably making him one of the few out of 23 million Malaysians who do not think this is the normal modus operandi of the Malaysian police force. On the contradicting evidence of the prosecution's key witness, Azizan Abu Bakar, who is also the so-called victim of the sodomy act, the AG justified this by arguing that the contradicting evidence does not contaminate his entire testimony as alleged by the defense. The AG seemed to be facing a lot of problems trying to rebut what the defense had raised last week and he was clearly struggling in trying to argue his points. Justice Hamid had to interrupt him many times along the way and put words into his mouth or suggested that 'maybe this was what you are trying to say'. Sometimes Justice Hamid would raise certain questions to enable Gani to explain his point and help make it clearer. It was quite apparent the prosecution was not doing too well so the court would need to help it better argue its case. At one point it became extremely irritating when one could no longer tell which one was the prosecutor and which was the judge. Justice Hamid seemed to be playing the roll of the prosecutor and was arguing the prosecution's case better than even the prosecution itself was doing. Gani was not coming across crystal clear in his rebuttal of the defense's submission and he appeared vague as if he was sidestepping the issues and was avoiding directly replying to the defense submission. The impression most in the spectators' gallery had was that Gani was intentionally trying to keep it murky so that the judges would remain confused. This would mean there would still be many doubts in the minds of the judges and, in such a situation, since there were still many doubts and unexplained issues, the judges may give this benefit of the doubt to the prosecution, as they had been doing so all along during the course of the trials and the appeal hearings these last five years. In fact, at one point, when Gani avoided directly replying to a point raised by Justice Hamid, Christopher Fernando stood up to inform the court that the prosecution had not replied to the point raised by the court. On the point of the credibility of the witness and his contradictory evidence, the fact that Azizan was inconsistent and kept changing his testimony does not make him a liar or discredit him, argued the AG. In fact, the opposite is true. Because Azizan was inconsistent, means, he is telling the truth. A person who is lying would have rehearsed what he wanted to say and there would be no inconsistencies in his testimony. Azizan, however, was telling the truth and that is why he kept changing his story. Inconsistencies and forgetfulness are normal and just goes to show that that person is telling the truth. On the fact that the charge against Anwar was too vague in that he was alleged to have committed the sodomy offence one day between January and March 1993, this is not uncommon, said Gani, and he cited three authorities to support his argument. On the defense's argument that the charge against Anwar was initiated at the lower Sessions Court, after which the case was transferred to the High Court -- which should therefore not have amended the charge but should have instead sent it back to the Sessions Court for Anwar to be recharged -- the prosecution said this in no way takes away the High Court's right to hear the case. The prosecution admitted that Anwar's diaries, which had been confiscated by the police, were tabled as evidence except for the 1993 diary, which the police somehow lost and could not trace. Anwar was alleged to have committed the sodomy offence in 1993, so the diary that could have proven his innocence was conveniently misplaced. Gani completed his submission at 12.30 after which he left the courtroom and his deputy, Yusoff, took over. The issue that Yusoff wanted to rebut was the allegation of an attempt by the AG to fabricate evidence and that the charge against Anwar was fabricated. These allegations, said Yusof, had no relation to the charge and that is why these allegations were not taken into consideration. For the court to take it into consideration, there must be proof of a high degree of probability and that they should be related to the charge. It was not too clear what the prosecution was trying to say here. Though it made no attempt to deny the allegation of an attempt to fabricate evidence against Anwar, it said this has no bearing on the charges against Anwar. On Manjeet Singh Dhillon's letter to the then AG, the late Mohtar Abdullah, and the Statutory Declaration, Yusoff did not deny the incident but said that this was merely 'plea bargaining'. Yusoff, in fact, admitted the incident but denied they had threatened Nallakarupan with the death sentence. All they did was tell Nalla that the charge would be 'maintained' unless Nalla 'cooperates' with the prosecution by implicating Anwar in affairs with men and women. Yusoff did not deny that the AG had asked Nalla to implicate Anwar in sex scandals and that the charges against him, that carries the death sentence, would be reduced to a lesser charge if he did their bidding. At this stage, Fernando stood up to say that the prosecution has, to this day, never denied Manjeet's allegation. No evidence was ever adduced to rebut the allegation, said Fernando. The court will reconvene tomorrow.
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