Friday, 21-May-2004 2:23 PM

How will Malaysia’s Federal Court rule?

Yesterday, Malaysia’s Federal Court at its new home in Putrajaya, the ‘Palace of Justice’, adjourned after hearing submissions from both the Appellant (Defence) and Respondent (Prosecution) in the Anwar Ibrahim and Sukma Darmawan Sasmitaat Madja appeal hearing.  The submissions, which started on Monday, 10 May 2004, took seven days to complete.

A bit of background information

For the benefit of the ‘newcomers’, Anwar Ibrahim was Malaysia’s Deputy Prime Minister until 2 September 1998 when he was dismissed by the then Prime Minister, Dr Mahathir Mohamad, on allegations of abuse of power and sexual misconduct. He was subsequently detained on 20 September 1998 after leading the largest anti-government demonstration in Malaysian history.

On the night of his arrest, though handcuffed and blindfolded, he was assaulted by the Chief of Police and left unconscious on his prison floor. He was discovered the next morning still unconscious and it was not till much later that he was allowed medical attention. The Chief of Police was later indicted and jailed two months after he pleaded guilty to beating up Anwar.

On 2 November 1998, Anwar was tried in the Kuala Lumpur High Court on four charges of corruption under Ordinance 22. This was the first time in Malaysian judicial history anyone had been charged under this section of the law where the alleged crime did not involve any monetary gain or financial benefit of any kind.

On 14 April 1999, the trial judge, Justice Augustine Paul, convicted and sentenced Anwar to six years imprisonment on each charge, the sentences to run concurrent. After a one-third remission, Anwar completed his sentence on 14 April 2003. (Anwar had earlier appealed against this conviction in both the Court of Appeal and Federal Court but his appeal was turned down both times).

On Monday, 7 June 1999, Anwar was charged a second time in the Kuala Lumpur High Court, this time for the offence of sodomy. The ‘victim’ of this alleged sodomy crime was Azizan Abu Bakar, the one-time driver of Anwar’s wife, Dr Wan Azizah Wan Ismail.

The High Court judge was Justice Dato' Arifin Jaka and the case was entitled PUBLIC PROSECUTOR vs. DATO’ SERI ANWAR IBRAHIM (In the High Court of Malaya, Federal Territory Criminal Trial No 45-51-98).

Anwar was jointly tried with the second accused, Sukma Darmawan Sasmitaat Madja, his Indonesian-born adopted brother. Sukma's case was entitled PUBLIC PROSECUTOR vs. SUKMA DARMAWAN SASMITAAT MADJA (In the High Court of Malaya, Federal Territory Criminal Trial No 45-26-99).

Anwar's and Sukma’s sodomy trial took 118 days to complete and appears to be the longest High Court trial in the country’s history. On 8 August 2000, Anwar and Sukma were both convicted and received a nine-year and six-year sentence respectively. Sukma’s sentence, however, includes four strokes of the rattan (whipping). Anwar, because of his age, was spared the rattan but he was handed down a longer jail term.

Anwar and Sukma appealed against this conviction and, after an unusually long two-and-a-half year wait, the case finally came up for hearing on Monday, 24 March 2003, in the Court of Appeal. On 18 April 2003, the Court of Appeal turned down the appeal after which Anwar and Sukma brought their appeal to the Federal Court. The Federal Court finally sat to hear the appeals on 10 May 2004, more than a year later.

What the Federal Court would have to decide

The Federal Court promised it will come out with its decision ‘as soon as possible’ and added that it will sit down and work ‘uninterruptedly’. (In the meantime, this morning, Anwar and Sukma applied for bail pending the court’s decision on their appeal and the court will deliver its decision tomorrow, Saturday, 22 May 2004).

What the three Federal Court judges will have to consider in its judgement are the following:

The most crucial issue for the Federal Court to consider is whether Anwar’s and Sukma’s joint trial can be considered null due to a breach of a statutory requirement of the law. This statutory requirement is Section 402A of the Criminal Procedure Code. Under this section of the law, the court is supposed to allow an adjournment for the accused to file his Notice of Alibi. And this Notice of Alibi must be filed ten days prior to the commencement of the trial.

In Anwar’s and Sukma’s case, they had complied with this requirement when they were first charged with committing the sodomy offence in 1992. But the charges were subsequently amended to 1994 and finally to ‘one day in 1 January and 31 March 1993’. Anwar’s and Sukma’s solicitors then applied for an adjournment to enable them to file a fresh Notice of Alibi for these new dates; the first ninety days of 1993. But the court would not allow it and ruled that the trial commence without further delay. It said that the old Notice of Alibi was sufficient and no new one was required.

Anwar’s and Sukma’s solicitors argued that the old alibi, which was for 1994 or 1992, would not apply to 1993. Anyhow, added the solicitors, this is a mandatory requirement and the court has no discretion in the matter. The prosecution though replied that the Notice of Alibi is for the benefit of the prosecution and not the defence, so it is the prosecution’s loss and not the defence’s if it is not done. The Notice of Alibi is meant to enable the police to investigate the alibi to see whether there is any case so that a lengthy trial can be avoided if there is no case. Furthermore, the police had already investigated the matter so they need no further investigation; therefore no new Notice of Alibi is required.

What the Federal Court has to now consider is, notwithstanding to whose benefit this Notice of Alibi is and whether the police had already completed its investigation into it or not, did the trial judge err in failing to comply with a mandatory requirement thereby resulting in him violating the law? In the event it is ‘yes’, then the trial can be declared null and the court need not even look at any other issues thereafter. This would then be a mistrial and it is up to the judges to either acquit Anwar and Sukma or order a retrial.

If Anwar and Sukma fail on this first point, then the next issue would come into play. And this is the credibility of the prosecution’s key witness and the reliability of his testimony.

Azizan Abu Bakar, the prosecution’s key witness, alleged that Anwar and Sukma had sodomised him. His testimony in court, however, was never corroborated. The court therefore has to rely solely on his testimony with no supporting or tangible evidence. But was Azizan telling the truth?

Azizan kept changing the dates of the alleged sodomy incident. First he said it happened in 1992 at the Tivoli Villa apartments. When Sukma’s lawyers filed a Notice of Alibi proving that this could not be possible as, in 1992, the Tivoli Villa was still under construction and was not ready for occupation yet, the charges were amended to 1994 and finally to ‘one day in 1 January to 31 March 1993’.

But then, Azizan testified under oath that the sodomy act never happened after September 1992. If Azizan can be believed and that Anwar and Sukma did in fact sodomise him, it did not happen anymore after September 1992. So how can Anwar and Sukma be charged for and be found guilty of committing a sodomy act ‘one day in 1 January to 31 March 1993’ when the so-called ‘victim’ testified under oath it never happened after September 1992?

Then there is Azizan’s testimony that it NEVER happened at all. This is an extract of his testimony:

Q: "Did you tell the police you were sodomised in 1994?"

A: "No."

Q: “Who fabricated the evidence?”

A: “I don’t know.”

Q: "Did you tell the police you were sodomised in 1992?”

A: "No."

Q: “Who fabricated this evidence?”

A: “I don’t know.”

Q: “The date 1992 is false?”

A: “Yes.”

Q: "I put it to you that the charge was amended to 1993 because the building was not even ready for occupation (in 1994)?"

A: “I don’t know.”

Q: “Did you agree to this proposition?”

A: "Yes.”

Q: Who asked you to change the date to 1993?"

A: "SAC1 Musa bin Hassan (the investigating police officer)."

By Azizan’s own admission, he was never sodomised, he never told the police he was sodomised, and that it was the police that coached him as to what to say.

Azizan clearly testified he was never sodomised, ever, and even the judge and prosecutor were taken aback at this admission. And Azizan was asked this question three times and all three times he said he was never sodomised. A police officer who had investigated the allegation came to court as a prosecution witness (which means he should be hostile towards the defence) and testified that, in the course of the interrogation, Azizan told him Anwar and Sukma never sodomised him and that he was bribed into making this allegation.

Somehow the court did not take all this into consideration. The question now is, will the Federal Court do so or will they concur with the trial judge and the Court of Appeal and uphold the conviction and sentence? The case against Anwar and Sukma is based solely on Azizan’s allegation. There is no other corroborating or tangible evidence Now that he said it did not happen, or even if it did it never happened after September 1992, where goes the prosecution’s case?

In fact, the trial judge himself was so irritated with Azizan’s contradicting testimony that he retorted the witness is so unreliable he cannot even answer simple questions. “He says one thing today and another tomorrow,” said the judge. But, surprisingly, in his ruling, he said Azizan’s testimony is to be believed and is “as strong as the Rock of Gibraltar”.

The prosecution, in trying to justify Azizan’s forever changing testimony, said that Azizan’s inconsistency is proof he is telling the truth.  If a person were lying, argued the prosecution, then his story would never change because he would rehearse what he wanted to say and would stick to it. The fact that Azizan kept changing his story means he is truthful. After all, forgetfulness and inconsistencies are normal human characteristics, explained the prosecution, and just because a person may lie in part of his testimony does not mean you cannot believe his entire testimony.

The Federal Court must now decide whether it buys this or, since you have been proven to have lied, and there is no other evidence to support what you have said, then it has to assume that your entire testimony is suspect.

Then there is the issue of burden of proof for the Federal Court to consider. Normally, the prosecution has to prove the guilt of the accused. In Anwar’s and Sukma’s case however, the burden of proof was placed on them. In his judgment, the trial judge in fact stated in two instances that Anwar and Sukma had failed to prove their innocence.

The onus is not on Anwar and Sukma to prove their innocence. All they need to do is raise reasonable doubt and this they had done. The prosecution, instead, needs to prove Anwar’s and Sukma’s guilt and this it had not done.

Will the Federal Court see it this way?

One pertinent point for the Federal Court to also take into consideration is the vagueness of the charge. Anwar and Sukma were charged for sodomising Azizan ‘one day in 1 January to 31 March 1993’. The prosecution said it has detailed records of both the Prime Minister’s and Deputy Prime Minister’s entire movements. Both the Prime Minister and Deputy Prime Minister are followed twenty fours hours a day, seven days a week, for their own security and protection and a detailed record of their movements are maintained. And Anwar was a Deputy Prime Minister so they have detailed records of every minute of his life up to 2 September 1998, the day he was sacked.

So, if this is true, then the police will know exactly where Anwar was every minute of the day between 1 January 1993 and 31 March 1993. But why then was the charge so vague -- one night over 90 days. Why can’t they be specific and pinpoint which one day of these ninety days the alleged crime was committed? And why were these detailed records of Anwar’s entire movements during the period he was the Deputy Prime Minister (and between 1 January and 31 March 1993 he was already the Deputy Prime Minister) not adduced in court to either prove he was or was not at the scene of the so-called crime.

Then there is the matter of Anwar’s office diaries, which the police confiscated from his office the day he was sacked as Deputy Prime Minister on 2 September 1998. These diaries were later shown to the court during the trial. However, the diary for 1993 somehow got misplaced and has never been found till this day. Since Anwar was charged for committing the offence in 1993, the 1993 diary would prove where he was from 1 January to 31 March 1993.

How come, from all those diaries confiscated, only the 1993 one is missing. Is this merely a coincidence?

If the police had not ‘misplaced’ the 1993 diary and the detailed records of Anwar’s movements that the police maintained the entire period he was the Deputy Prime Minister had been produced in court, Anwar could have easily proven he was somewhere else and nowhere near the Tivoli Villa from 1 January to 31 March 1993.

These are of course not the only issues for the Federal Court to consider though they are key issues. Many other issues such as the conflict of interest of the judge (in that he was a business partner of the Prime Minister’s son), the political conspiracy (where many witnesses had come to court to testify that there was indeed a conspiracy), the fabricated charges (where many had testified they were bribed, attempts made to bribe them, or blackmailed into alleging Anwar was sexually immoral), the judge blocking witnesses from being called to court (the then Prime Minister Dr Mahathir included) and many, many more will also need to be considered by the Federal Court.

But the billion Ringgit question is, will the Federal Court too rule these issues as all immaterial, irrelevant, has no bearing on the case, and has no bearing on the charge, just like all the other judges before this? I suppose, time will tell, and that time will be soon.

If Anwar fails in his appeal, he will be in jail until 14 April 2009, or, if he does not get a one-third remission on his sentence, until 14 April 2012. Sukma, who has a shorter six-year sentence, will also suffer four whippings, a fate that even the strongest of men buckle under. And Sukma is but a fragile of a human being. He will certainly fall into unconsciousness even before the whip touches his back.

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