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Monday, 31-May-2004 7:29 PM ANWAR IBRAHIM Day Eight of the Appeal Hearing in the Federal Court 21 May 2004 Application for Bail The Bench: Abdul Hamid Mohamad Rahmah Hussain Tengku Baharudin Shah Tengku Mahmud Counsel for the Appellants: Christopher Fernando Karpal Singh Sankara N Nair Pawancheek Marican Zulkifli Noordin Saiful Idzham Ramli Marisa Regina Kamar Ainiah Kamaruzaman Jagdeep Singh Deo Gobind Singh Deo Ram Karpal Singh Shamsul Iskandar Mohd Akin Prosecution: Abdul Gani Patail Yusof Zainal Abiden Tun Majid Hamzah Mohd Hanifah Zakaria Shamsul Sulaiman Ishak Mohd Yusof Mohd Azar Watching brief for Malaysian Bar Council: Malik Imtiaz Sarwar Ang Han Leng Foreign Observers: Marzuki Darusman (former AG of Indonesia) representing the Inter-Parlimentary Union Desmond Fernando (Chairman, Sri Lanka National Commission of Jurists/ former President of International Bar Association) representing The International Bar Association (IBA) Mark Trowell QC representing the Australian Bar Association/ Western Australian Bar Association and the International Commission of Jurists Upali A Gooneratne (Chairman Legal Aid Commission) representing LAWASIA Karpal Singh (KS) submitting for the first appellant. Application for Bail A similar application was made for both appellants in the Court of Appeal, but it was rejected. The application was for a stay of execution and bail, pending appeal. The hearing was in July 2003. Judgment was reserved and only handed down on 21 January 2004. The reasons for such a long wait cannot be accounted for. An immediate application was made [to the Federal Court] on 28 January 2004, under Section 82, but the case was only mentioned on 10 May. What is the law, and what are the facts and circumstances which should be considered in deciding whether bail ought to be allowed now – that is, at the tail end of the [Federal Court appeal] proceedings? We are not asking for the judgment, just bail. Although the judgment has been promised “as soon as possible”, no definite date has been fixed. An application was made to the High Court; it was rejected. Another was made to the Court of Appeal, and that, too, was rejected. This is now the third attempt. I would like to refer Your Lordships to Section 89 [of the current Courts of Judicature Act (CJA)] , the wording – as compared to Section 57 [of the old Act]. In its judgment on the bail application, the Court of Appeal found that “[Anwar] has responded well to treatment. The authorities are making an effort to fulfil his medical needs”. Therefore the grounds [of his need to get medical treatment] were “insufficient to constitute ‘special circumstances’”. Furthermore, “presumption of innocence was not grounds for..” Abdul Hamid Mohamad (AHM): But this is not an appeal against the Court of Appeal decision, so why are you talking about their decision? KS: Presumption of innocence as a factor, they should have allowed it. This was a pre-trial application, so presumption of innocence was a valid ground. If the grounds of appeal for prima facie are very strong, this is a compelling factor. There has to be an extraordinarily high possibility of success in the appeal to justify giving bail. My Lords/My Lady, be on guard here. After their application has been rejected by the two other courts, if this court does not allow bail, and later the two appellants are found innocent, would this not be unjust? You have judicial discretion. Valid Grounds to Consider There are two valid grounds to consider: (i) the nature of the offence (ii) the character of the prosecution’s evidence. In another (local) case, the judge said that “..serious defects in the trial judgment made me confident that there were valid grounds for granting bail”. There was a strong likelihood of the appeal succeeding. After the second amendment [of the charge], the appellants, especially the second appellant, were not given the opportunity to file a [new] notice of alibi. 402A is mandatory, the court has no discretion. There has been no adequate reply to our contentions on any of these matters. There are strong enough grounds for granting bail because there are strong enough grounds for allowing the appeal, that is, for the appeal to be successful. Under Section 4 of the CPC it is a matter of discretion. There is an allowance to grant bail after the end of a trial or hearing if there are strong grounds for thinking that they may succeed in the appeal. Even though it may be for only a short period until the decision is passed down, it should still be granted. The length of time both appellants have already been in custody should also be considered. Bail should have been allowed by the High Court itself. The first appellant has been in prison for five and a half years. For this type of offence, bail has been allowed in such cases. Why must this case be made such an exception? The law is there, My Lords/My Lady: All persons must be treated equally before the law. In fact in most cases, there has normally been no objection from the prosecution. Then again, although when the Court of Appeal gives the reason that, because it is at the appeal level there must be exceptional circumstances and a strong possibility of success [of the appeal], there are still solid grounds. Again, usually there is no objection. There is no specific ruling concerning the Federal Court on this matter. “Exceptional circumstances” should be interpreted not only as meaning 100% chance of success, but on merit. Gobind Singh Deo makes the same submission [for the second appellant]. I’m much obliged, My Lords/My Lady. Submission by Christopher Fernando (CF) for the first appellant. Conditions for Bail CF: We all know the law and the authorities regarding bail. But what is the judicial etiquette regarding bail? What has been the trend all this while? Bail has been given all these years almost as a matter of course. The prosecution hardly ever opposes bail. And if they do oppose, it is only if two conditions apply: (i) The accused person is a dangerous criminal, and that he may become a repeat offender, or he may tamper with witnesses, or he may intimidate certain people. (ii) The accused may abscond. These are the only two reasons ever advanced in our country as far as we know. Neither of them applies here, as My Lords/My Lady will see. The case is over, no witnesses will be called, there is no danger of tampering with witnesses – in fact, this has never been a ground raised by the prosecution for their objection. Will he pose a danger? There is no likelihood of this either. We must view the matter in the light of the appellant’s position in the government and in the country. We have trusted him to run our country for 16 years. He had even acted as Prime Minister of our country. He is respected nationally and internationally, even until today. World leaders hold him in high regard, and are concerned about his present condition. He receives thousands of letters of support, even from those whom he doesn’t know. He is no risk to anyone. Will he abscond? There is absolutely no risk that he will abscond. He was born here, he has his family, his roots here. He is not a person to run away from anything. He is a nationalist. He only wants justice. Where is he going to run to? Everyone knows him. We can safely discount it; he is not a flight risk. All he is waiting for is a decision on his case. Prosecution’s Objection The prosecution raised the point that bail applications ought to be seen from two perspectives: (i) Pre-trial bail (ii) Post-trial bail The trend in our country does not make this distinction. It is quite normal in our country even after conviction. He is still a human being. I was in court recently when a public prosecutor from the AG’s Chambers was convicted and sentenced to two years jail. After the conviction, bail was applied for, and when the judge asked the prosecution whether they had any objection the answer was a spontaneous “no”, and he was freed. Why, in Anwar’s case, is there so much objection, such vehement objection? Why is so much fuss made to ensure no bail is given? Isn’t this a clear case of double standards? Your Lordships have had long experience on the bench. Has there ever been a case when such strong objections were made against a person being granted bail? KS has mentioned the character of the prosecution evidence as a factor to consider. In light of Manjeet Singh Dhillon’s evidence, there is now a new factor: the character of the prosecutor. It is said that “A fair prosecution is a prerequisite for a fair trial”. Now we can add a new phenomenon, a “fair prosecutor”. Here the prosecutor has played such a dishonourable role. Why is this prosecutor objecting so vehemently to bail, contrary to normal practice? He is the last person who should be prosecuting this case. This should be a very important factor for Your Lordships to consider when deciding whether to accept the prosecution’s objection to bail. Has an AG ever gone to court before to object to bail, and with such vehemence, when neither of the two conditions is present? The prosecutor should have protected the accused, not worked against him. There are no vitiating elements in this case. There is every reason to grant bail. Even people charged with murder have been granted bail. There was a case recently. I am not complaining; I am happy for him. In fact in the end he was acquitted. Is this present case more serious, more heinous than murder? The most serious offence in the Criminal Code is murder. If in that case bail could be granted, why not in this one? My Lords/My lady should experience what it is like to be in jail, how traumatic it is. I urge you to grant bail. It is not going to hurt anyone. If the prosecution can show how it will hurt anyone I will withdraw the application. Article 8 of the Federal Constitution spells out very clearly that all are equal before the law, and have a right to equal protection. Is it just because his name is Anwar Ibrahim and he was a former deputy prime minister, that he must be treated differently? I urge Your Lordships not to become accomplices to what the prosecution wants to do. You must treat everyone with dignity and respect. Just because the appellants have been convicted, it does not mean that they should not be treated with dignity and respect. In another recent case, My Lords/My Lady, a Dr Hamimah was charged in court. It was the first time in Malaysia that a charge of money-laundering had been brought. The amount involved was quite phenomenal. When bail was applied for, the Sessions Court judge asked the learned DPP, “Are you opposing?”, to which he replied, “We oppose bail, but since the court is inclined to grant bail, we suggest a surety of RM1 million”. It was a non-bailable offence, but the DPP had the magnanimity to withdraw his opposition. The court cannot aid and abet the prosecution in practising double standards. Medical Condition of First Appellant Your Lordships will be aware of his illness. On the very first day of his arrest he was savagely assaulted, whilst handcuffed and blindfolded, by the former Inspector General of Police, resulting in him suffering a slipped disc. I do not know whether any of Your Lordships have ever suffered a slipped disc. I myself once did, and I can tell you, the pain is excruciating. One feels it with every movement. It is like a toothache but twenty times worse. His condition has become progressively worse, despite denials from my learned friend. They keep on giving painkillers, and the dosage has had to be progressively increased. This has been going on for more than 5 years. My Lords/My Lady, it does need an expert to know what damage can be caused [to the kidneys] by taking painkillers for more than 5 years. The authorities have refused to give proper medical treatment, despite it being repeatedly requested. They have turned the first appellant into a drug dependent. He has to have these medical props to survive. And now he is confined to a wheelchair. AHM: There is no need to mention this. CF: Then, My Lords/My Lady, my learned friend had the temerity to say that some people think he is pretending. He is not pretending. He is suffering a lot of pain and a lot of mental anguish. This man’s illness is surely a very strong factor to consider in deciding to grant bail. I urge you in all good conscience to grant bail. Don’t allow him to waste away. If in the unlikely event that Your Lordships disallow his appeal, he can be brought back. The court can even impose some reasonable conditions, and if either of the appellants breaks any of these conditions he can be re-arrested. Apart from saying there are no special circumstances to allow bail, can the prosecution give one good reason to oppose the application? Please put all animosity aside. A report from Kuala Lumpur Hospital… AHM: Is it one of the exhibits? Otherwise it cannot be tendered. CF: I just want to underline. I only got it today. AHM: You must follow procedure. You can produce it later. You could file a supplementary affidavit. CF: Yes, I will do that. AHM: That would be better. Then the prosecution will be able to take a look and respond. CF: The first appellant needs proper treatment. He has asked to go overseas but this has been rejected. He needs constant medical care, but this is not available in the prison. He is sent to hospital, but only occasionally, and it is a lot of trouble [for the prison authorities and police]. If he is granted bail this will be overcome, it will benefit all parties. Even the Malaysian Human Rights Commission (SUHAKAM), headed by a former AG, has recommended that Anwar be granted bail and allowed to seek treatment overseas. AHM: It is not proper to mention this. Just tell us your own submissions, not the opinions of others. You should just stick to the law. I am not going to delegate my decision to SUHAKAM. CF: As a human being, he deserves bail. Imagine for a moment that Anwar and Sukma were your brothers, or your close friends. Could you just sit there and refuse bail? AHM: Are you suggesting we should follow our emotions? CF: No, it is the human factor. Especially in this case, the man is suffering. Can we just sit back and say, “We can’t do anything”? I’m obliged. Submission by Gobind Singh Deo for the Second Appellant Reasons to Grant Bail I will not repeat submissions concerning the alibi issue, because this has already been covered earlier [during the appeal hearing]. However, I ask Your Lordships to keep in mind that fact that the second appellant was not allowed to present any alibi evidence distinguishes him from the first appellant. It should be borne in mind that the second appellant was on bail throughout the trial. It was only denied after the Court of Appeal decision to reject the appeal. All that time there was no objection from the prosecution. There is no record of the second appellant not attending hearings, either in the High Court or the Court of Appeal. His passport is in the keeping of the court until now. There is no likelihood of him absconding. The offence is a non-bailable one for which bail is normally allowed. It is only because this is an unusual case that bail has become a big issue. I would like to draw Your Lordships attention to the health factor of the second appellant. He suffers from asthma, and it is appropriate that he should be on bail so that it can be treated. He cannot get proper treatment in prison. I submit that the merits in this case are more than enough to grant bail, especially for the second appellant by reason of the grounds of alibi. That will be all. Response by Gani Patail for the Prosecution My Lords/My Lady, I wish to draw your attention to the Notice of Motion of the two appellants – there is a separate one for each appellant. In these notices there is no mention of medical issues. With the greatest respect, if they wanted to bring this issue, it should have been mentioned in the notice as a ground. So there is a need to file this separately. It is against normal procedure not to mention something in the notice and then bring it up from the bar. We are not medical experts, so we cannot form an opinion or make a judgment on the medical ground. Both appellants were found guilty and convicted. The second appellant applied for, and was granted, bail and a stay of execution. The first appellant did not apply for a stay since he was still serving his sentence for the earlier conviction. He made an application later, but it was objected to by the PP, and the High Court, having heard all this, dismissed the application. Both appellants then made an oral application for bail in the Court of Appeal, but were told to make it in writing, which they did. The Court of Appeal rejected both the bail application and the appeal. Jurisdiction There are only two grounds to consider here: (i) whether this court has jurisdiction; and, if it has, (ii) whether the matter is entirely at the court’s discretion. According to the CJA (Courts of Judicature Act), “No appeal shall operate as a stay of execution, with the exception of punishment of death or corporal punishment”. Those are the exceptions. However, in another section it states that the High Court or Court of Appeal may stay execution on any judgment order, conviction or sentence. AHM: Yes, but I am still puzzled. One of these sections goes on to mention security of payments, etc. It does not seem to be right, it is exactly the same wording. KS: Since they are arguing on jurisdiction we had better solve this first. (After some discussion between AHM, GP and KS, it was agreed that GP should continue with his presentation first). AHM: It is not good to decide in parts. Let us see the whole. You (KS) have the right to reply afterwards. GP: It is my bounden duty to refer the court to [old] Section 57 and [new] Section 89, as well as the CPC. AHM: What is your point? This court has no jurisdiction? GP: Yes, My Lord AHM: Unlike Section 57, which has the word “but..” GP: The court has no jurisdiction. (Refers to..[inaudible]) The court cannot go beyond restrictions of law, restrictions of limitation. The court cannot go against it, the court is not empowered. There are instances when bail has been refused in sexual cases. A distinction is made between bail before conviction and bail after conviction. With due respect to my learned friend, this has been the practice for 10 years or more. There is a case.. AHM: After conviction? GP: Yes, after. It is my duty to refer Your Lordships to the law referring to bail. The conditions mentioned – whether the accused will abscond, etc. – are for before conviction only. Therefore, in this case, the court can only look at the contents of the Motion and KS’s submission on this. I will stick to legal points, because only that is relevant. The stay [of execution] is a matter of discretion. That is agreed. But our alternative submission is that this court has no jurisdiction. Discretion must be applied judicially. A stay can only be considered if the applicant has shown special circumstances. Unless there are compelling reasons, a convicted person should be presumed guilty. (Mentions several cases, then says, “I will not go into this, My Lord”.) GP then mentioned another case where an accused was refused bail because he might commit the same offence again. There was even a case involving a child where bail was refused because “special reasons and conditions were not shown by the defence”. Special reasons must exist. The applicant must show grounds for “good reason”. There is, in fact, no such thing as automatic granting of bail. There must be strong grounds. The court must not adopt an indulgent or easy-going approach to granting bail. Judicious exercise of court authority must refer to rules and procedures. In another case, the judge found that he “[could] not see evidence that the accused is driven to permanent mental damage”. The report says that the accused is now under treatment, therefore there is no special need. Furthermore, there must be a certain chance of success in his appeal. In this case, from the submissions over the last few days that condition - certainty - is not present. Other matters are just on law, with which Your Lordships are already familiar. I would just like to emphasise again that a distinction must be made. Much obliged. AHM: Is that all? Are you not replying to the rest of their submissions? GP: That’s all. AHM: Section 89 [of the CJA, specifically about the Federal Court] is still puzzling me. The end part – there may be a mistake in drafting, when it was moved to a new section from an old one. GP: The first part is quite clear, it is not affected by the later part. Rebuttal by Karpal Singh (KS) Jurisdiction KS: There was a contention that in the Court of Appeal application Section 57 did not apply, and therefore it was sent to the Federal Court under Section 89. Now we are told that this court has no jurisdiction because of Section 89! Certainly there is a mistake in Section 89 – there are words missing in 89(1). AHM: [To court clerk, requesting him to go and fetch a copy of the CJA] Please get the Malay version, it is more authoritative. KS: [Continuing, while waiting for the clerk to return] I now ask the judges to consider reading the following missing words into 89(1) “The Federal Court may..”. Section 89 must be read as a whole in order to reveal the intention of the legislator; one cannot just read 89(1) without also reading 89(2). It was the same with Section 57 – one had to read 57(2) in the context of 57(1). I ask Your Lordships to read into Section 89 in order to examine the legislator’s intention. It is important to be faithful to the legislator’s intention. The role of the judiciary is to implement laws passed by Parliament in keeping with the legislator’s intention. This court has jurisdiction to do this, that is, to read into the Section and interpret the legislator’s intention. We reject the grounds of objection of the prosecution. Referring to Section 89(1), it is clear that granting of bail is a matter of discretion. It is relatively new, so there are no cases yet. [Quoting an authority] It is clear that reasons for rejecting bail are not restricted to just three conditions. Bail can be allowed if there is no objection from the court. It should consider the length of imprisonment, and the points of law involved. They must be taken all together, not in isolation. (At this point the court clerk returned with the Malay version of the CJA, but it was found that the full text of the relevant section – 89(1) – was in English, and was identical to the version proffered by the prosecution, i.e. with an apparently incomplete sentence) KS (continuing): One important factor to consider is whether there are difficult points of law involved. There is no evidence to show that the appellant might abscond or become a repeat offender. Conditional bail can be granted, with one of the conditions being that they must attend court. If he has been in prison all this while, and the decision of the Federal Court is expected any time, why should he abscond? What new offences will he commit in such a short time? Why should he sacrifice all that time spent in jail, just for a few weeks more? The judgment of another case, concerning allowing of bail, cites the principle that the presence of error of law - glaring, and shown in the records – indicates a high prospect of success, the grounds of appeal are very strong (not amounting to “certainty”). In another case it was ruled that it needed “more than an arguable point”, that was already sufficient. I submit that we have done this. All this, My Lords/My Lady, is based on facts, not just “special circumstances”. This is a concession which was not there, until now. Nevertheless, the circumstances themselves are more than compelling. Much obliged. At the enquiry of AHM, CF/KS confirmed that the defence is not pursuing medical grounds in the application for bail. Rebuttal by Christopher Fernando (CF) Bail at Appeal Stage I refer to the [English Court of Appeal case] R vs Smith, [quoted by the prosecution], in which there is the proposition that the chances of success in the appeal must reach “certainty”. Although English decisions have a persuasive authority in our courts, this is certainly not binding. Our courts, to this day have never followed this ruling. If they had done so, it would have effectively shut the door to all convicted persons from being granted bail. In the case of Saidin Thamby, he was sentenced to 2 years jail, yet the Shah Alam Sessions Court granted bail, without any objections from the DPP. In a second case, a DPP was convicted and sentenced by the Sessions Court, then the appeal was dismissed by the High Court, and the High Court itself granted bail. AHM: There is no point in just quoting all these cases – we don’t know the full reasons. I think we have enough authorities. CF: I just want to emphasize that we have never followed R vs Smith. AHM: Do not follow – yes. CF: No, have never followed. Chance of Success The first ground is that of Azizan’s credibility. Let us leave all the other issues. We are 100% sure we will succeed on this ground alone. AHM: I’m not sure yet. CF: We must succeed, unless legal principles are thrown out of the window. The second ground, which is also very strong, is the conduct of the AG in this case. Even if R vs Smith applied, we are still confident that the appeal will be allowed. That is all. AHM informed the court that the decision on the bail application would be passed down the next morning at 9.00 am. Court was adjourned.
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