BLAST FROM THE PAST

DISSECTING ANWAR'S FINAL JUDGMENT

28.07.2002

After reading through the entire written Judgment of the Federal Court (highest court) rejecting Anwar’s Appeal on his corruption conviction, and after re-visiting the proceedings of this Appeal in the same court earlier, my conclusion is that this final Judgment is nothing but a cover up of the worst atrocities against justice committed earlier by high court judge Augustine Paul in his conviction of Anwar for corruption.

Indeed, this final Judgment is strangely unreflective of this court’s earlier display of independence through its unsparing comments and queries directed at the respondent (prosecutors) during the hearing of this Appeal. This judgment also shamelessly contradicts another related judgment by this same court earlier, where judge Paul’s “contempt conviction” on one of Anwar’s lawyer was overturned with severe reprimand on the judge and the prosecutors (both appeals were heard by a panel of 3 judges, of whom 2 sat in both).

Reading through the Judgment, one has the unmistakable impression that the judges have taken a reverse turn in this case. It is as if they have suddenly lost their inquisitiveness and righteousness and become tame and unquestioning believers of Paul’s judgment, blind and deaf to the many thunderous and unassailable arguments put up by the appellant’s lawyers.

I have described this Judgment as a cover up, simply because it has produced no significant substance to effectively counter the appellant’s multiple and powerful grounds of appeal, other than to acquiesce with judge Paul, again and again, in terms that are general and vague – an obvious tactics adopted by unconscionable judges to cover up their lack of legal rationale.

Instead of taking the appellant’s and the respondent’s arguments head on, and deliberate on them in depth and come up with its own analysis, the court merely repeatedly quotes from judge Paul on almost every major point of contention, and invariably follow the quotations with “we agree” in its many variations, such as:

“we have examined his findings ………we do not find any flaw …..”

“we have carefully examined the evidence ....we see no reason to disagree ....”

“we have examined the record, we cannot say that the learned judge wrongly exercised....”

“considering the totality of evidence, we cannot say the learned judge erred ....”

“we are not persuaded that the conduct of the learned judge amount to a miscarriage of justice .......” The opinions conveyed by the above expressions are mostly without legal merits, as they are not supported by the judges’ own deliberation and analysis. The judges merely echoed what judge Paul said without giving proper considerations to the grounds of appeal thrust forward by the appellant.

The appellant has put up many grounds of appeal, some of which are so significant and so strongly supported by evidence and law that they could have singly caused the conviction to be quashed, unless rebutted on valid legal ground. And this, neither the respondent nor the judges succeeded in doing.

We will begin by looking at the crux of the case that floored both this final Judgment as well as Paul’s judgment. And the crux is the issue of Anwar’s alleged sexual misconduct, whether it is relevant or irrelevant to the case.

CRUX OF CASE: ANWAR’S ALLEGED SEXUAL MISCONDUCT

Judge Paul ruled that the truth or falsity of Anwar’s alleged sexual misconduct is irrelevant to the case, to which the federal court acquiesced.

But common sense tells us that, in a case like this, where the accused is alleged to have committed a crime in order to obtain forced retractions from the accusers, the very first question any sensible person will ask is: are the allegations true?

The answer to that question is vital, for if the allegations are false, then the rug would have been pulled from under the case. The case would have been simply brushed aside as not worthy of further consideration, for who would be so stupid as to commit an offence punishable with long prison term just to get a retraction over a fictitious allegation (certainly not the deputy prime minister of a country)?

In this respect, it is significant to note that judge Paul has harped on this issue by saying that Anwar has “made use of the denial letters to stop the police investigation from proceeding any further”. Paul further added: “The accused has therefore saved himself from any criminal action by using the denial letters which had been unlawfully obtained”.

By uttering the above, Paul was essentially assuming that Anwar was guilty of sexual misconduct, thereby contradicting his own all-important ruling that the truth or falsity of Anwar’s alleged sexual misconduct is completely irrelevant to the trial.

At this point, Paul was trying to establish the second of two ingredients necessary to find Anwar guilty of “corrupt practice”. The first ingredient is that the accused must be an officer as defined in the relevant ordinance, and the second is that the accused has gained pecuniary or other advantage. As no money is involved in this case, Paul is zeroing to show that Anwar has “gained an advantage by protecting himself from prosecution”. Again, this move requires the assumption of guilt of sexual misconduct by Anwar.

It is therefore seen that Paul bumps into the issue of sexual misconduct in every direction he takes. He has therefore no choice but to take the defence contention on this issue head on. He then embarks on a rather lengthy discourse to rationalize his position. Alas, Paul was attempting the impossible. The nature of this case is such that there is no way he, or any one for that matter, could have justified himself in dissociating the issue of sexual misconduct from this trial.

Paul’s miserable attempt to rationalize the irrational has ended up in a discourse that sounds more like a mumbo-jumbo of illogic than a piece of sound legal reasoning.

Paul’s failure in this respect carries mortal consequences to this case. It means that he has failed to establish the main ingredient necessary to establish the charge of “corrupt practice”, that truth or falsity of sexual misconduct is not irrelevant but absolutely essential, which in turn means that amendments to the charges and expunging of evidence relating to sexual misconduct are not legally permissible. In short, the case has collapsed in toto.

In view of its great significance, I will quote as follows the relevant portion of Paul’s said discourse in full (quoted in the final Judgment), followed by my comments.

“ ………… The accuse has therefore saved himself from any criminal action by using the denial letters which had been unlawfully obtained. This brings into sharp focus the contention of the defence that the accused could not have been prosecuted if the allegations are not true with the result that he would have obtained no benefit when the investigation was stopped. The submission requires a consideration of whether the accused would have obtained an advantage if no criminal action is ultimately taken against him by virtue of the allegations being found to be false at the proper conclusion. To my mind, this does not alter the advantage obtained by the accused in any way. It must be reiterated that the advantage obtained is only one of the elements involved in the charge. Thus it must not be read in isolation. It must be read together with the manner in which the public statements were obtained. Viewed in that light, the investigation came to an end as a result of the use of the denial letters obtained unlawfully on the direction of the accused. The investigation was therefore stopped by unlawful means. One cannot adopt an illegal course of action to obtain a benefit in the belief that he is entitled to it. He has to allow law and order to take its normal course......”

My comments to the above paragraph are as follows:

a) The first two sentences in the above paragraph articulates defence contention that the issue of truth or falsity of sexual misconduct is not irrelevant, as otherwise in the event the sexual allegation is false, there will be no criminal prosecution, and the accused could not have gained the advantage of protection from prosecution. Well reasoned and well said.

b) Then, in the third sentence, abruptly and illogically, he reverses the above well reasoned contention by saying: “To my mind, this does not alter the advantage obtained by the accused in any way”. This statement sounds strange and hollow, as it is isolated, and not augmented by supporting argument. How on earth could the accused have gained the advantage of protection from prosecution when there wouldn’t be any prosecution at all as there is no sexual misconduct? Paul fails to answer that.

c) In the fourth sentence, Paul downplays the importance of this “advantage” by saying: “It must be reiterated that the advantage obtained is only one of the elements involved in the charge.” This suggests that he is not confident of winning the argument on the issue of “advantage”, and he paves the way for the eventuality of losing this argument by suggesting that even if he could not establish this “advantage”, there are other “elements” which could prop up this case. However, does Paul realize that this particular “element” happens to be the most important, as without gaining any “advantage”, the accused could not have committed the alleged “corrupt practice”?

d) The fifth and sixth sentences do not carry much meaning.

e) Then from the seventh sentence onwards, he said: “Viewed in that light, the investigation came to an end as a result of the use of the denial letters obtained unlawfully on the direction of the accused....”

What’s wrong with the investigation coming to an end? Why should this have criminally implicated the accused? Why should Anwar have wanted the investigation to stop if he is innocent of the accusation? If at all he has given any direction to the Police, wouldn’t it be more logical for him to ask the police to continue rather than to stop the investigation, as he would then have the opportunity of exonerating himself? Paul alleges that the denial letters were obtained unlawfully and Anwar was responsible for this unlawful act. That suggestion sounds rather preposterous. Is it conceivable that the deputy prime minister of a country like Malaysia can be so stupid as to commit a serious crime punishable for many years jail just for the sake of obtaining a retraction on a fictitious allegation? Regarding the alleged guilt of obtaining the denial letters by force, it is one man’s word against another. Why should Paul believe the police officer and disbelieve Anwar, in view of the fact that both witnesses are not corroborated? Paul has not produced any convincing fact to justify his decision. In fact, in a criminal case such as this, where the onus of proof is on the accuser and not the accused, if at all any benefit of doubt must be given, it should be given to Anwar, and not to the police officer.

It will be seen from the foregoing analysis that Paul’s above judgment fails completely in logic and is totally unsustainable in law.

Coming back to the federal court judges, what does the panel have to say to the above discourse by Paul which attempts to justify his ruling that truth and falsity of sexual misconduct is irrelevant and also at the same time to establish the vital ingredient to justify the charge of “corrupt practice”, namely, Anwar has avoided criminal action through the denial letters?

Our learned judges comments in only one sentence, which is also their conclusion on these vitally important issues of relevancy of sexual misconduct and validity of the charge of “corrupt practice”. I quote from the judges:

“We have carefully examined the evidence and the grounds of the learned judge and we see no reason to disagree with his decision at page 143 (which contains the above discourse by judge Paul)”.

If our learned judges could accept Paul’s judgment outlined above in total and without any reservation, what else they cannot accept?

GUILTY OF SEXUAL MISCONDUCT?

At this stage, some may be curious to know whether Anwar is really guilty of sexual misconduct. Towards resolving this issue, I will make a few observations from the court proceedings, as follows:

a) Towards the end of the prosecution case, the prosecution abruptly amended the charges, dropped the sexual accusations; and the judge on its own volition expunged all evidences relating to sexual misconduct and banned any further evidence on this subject.

Why should the prosecution and the judge do as they did, if there was meaningful substance in the prosecution case, which had hitherto centered almost entirely on proving the alleged sexual misconduct?

b) The principal accuser Azizan denied in court 3 times that he was sodomised by Anwar. 2 of these 3 denials were categorical, as insisted by judge Paul. (In this connection, it is significant to note that Paul showed his bias by recording only one denial in his judgment.)

c) Mahathir had earlier declared to the world that he had incontrovertible evidence of Anwar’s sexual misconduct, and yet, upon subpoena, he left no stone unturned to ensure that he did not appear in court.

OTHER IMPORTANT ISSUES

Present Judgment Contradicts Previous Judgment.

In June 2001, the federal court quashed judge Paul’s conviction on one of Anwar’s lawyer for contempt of court. That judgment is probably one of the severest ever seen in this Country in terms of its condemnation of the conduct of judge Paul for his overt partisanship in oppressing the defence team of Anwar. Paul’s conduct was so obnoxious that one of the judges described him as “more like acting as counsel for the prosecution”.

The same judgment also exposed the prosecution team as engaging in a conspiracy to fabricate evidence against Anwar. In fact, if not for Paul’s summary conviction of Anwar’s lawyer, the disclosure of this conspiracy would have caused an implosion that would have derailed the main Anwar trial.

This federal court judgment was therefore valuable material for the appellant, and was promptly cited as one of grounds of appeal.

As 2 of the panel of 3 judges who sat in the 2001 hearing are also sitting in the present hearing, one expects the panel would at least be kind to this submission. But alas, the panel does not accept the appellant’s submission that judge Paul’s conduct was prejudicial against the defence. And so, what looked so obnoxious in 2001 now suddenly appears quite agreeable in 2002. But since the conduct of judge Paul referred to in both hearings took place in 1999, then how is it possible that the same image appears so differently to the same viewers this time?

The panel’s justification to this strange difference in view is that “the facts and circumstances of Zainur Zakaria (Anwar’s lawyer convicted by Paul) cannot be equated to the facts of this case”.

True, the “contempt conviction” is a separate case. But it is an intimate offshoot from the mother case, which is the Anwar trial. In fact the relationship between the two cases is so intimate that it is like fetus to the mother. If some one commits aggression against the fetus, can he be regarded as acting friendly to the mother at the same time?

The players in both cases are exactly the same: the judge, prosecutors and defence lawyers. Zainur was submitting an application to remove the prosecutors due to latter’s attempt to fabricate evidence against Anwar, and the judge cut Zainur out by convicting him for “contempt” to prevent him from spilling the beans, which would have the effect of demolishing the Anwar case. In the course of convicting Zainur, the judge’s conduct was so overbearing against the defence that the judge later incurred the wrath of the federal court in an appeal by Zainur.

So, if the federal court judges found judge Paul’s conduct in convicting Zainur totally unacceptable, how could the same judges find Paul’s conduct in the Anwar trial (which took place at the same time) perfectly acceptable, keeping in mind that in the 200l judgment, the judges had practically exposed the trial judge as having worked in collusion with the prosecutors to fix the defence? Can the same judge acting as devil to the defence in the “contempt” hearing be simultaneously acting like angel to the same defence in the Anwar trial?

The learned judges must have taken the public for fools, if they think their rationale is creditable to the people.

Defence of Conspiracy Barred.

Since Anwar could not disprove the allegation of sexual misconduct, his main line of defence was the existence of a political conspiracy to topple him by falsely accusing him of sexual misconduct. However, judge Paul ruled the issue of political conspiracy irrelevant and banned all witnesses and evidences relating to this subject. And hence, by this single stroke, which was the unkindest cut of all, the defence wings were clipped. Regrettably, Paul had not given any convincing reason to justify this most unfair and unreasonable ruling.

It is interesting to note that during the hearing of the appeal, the federal court was manifestly displeased with the trial judge’s ruling to ban the defence from using political conspiracy as a line of defence. It commented that the defence had the right to choose its line of defence as it deemed fit, including the theory of political conspiracy, without undue intervention from the court. And the defence was also entitled to call witnesses as it deemed necessary to support its case without such interference. Judge Paul’s position on this issue was so weak that the respondent could hardly utter anything sensible to justify Paul’s apparently indefensible ruling.

In spite of the strong and righteous sentiments expressed above, the federal court panel strangely did not take up this issue in the final Judgment, except to gloss over it, together with many other powerfully argued grounds put forward by the appellant, with a one-sentence comment, which is quoted as follows:

“Considering the totality of the evidence, with respect, we cannot say that the learned judge erred in his appraisal of the evidence and in the upshot, he is correct to find the appellant guilty as charged.”

And so, with one sweeping sentence, a sizable chunk of the appellant case, no matter how legally strong, is swept under the carpet. And of course, through the same stroke, justice is also swept away.

COMMENTS

Those who have read both the 2002 judgment and the 2001 judgment mentioned above will find these two judgments poles apart in terms of judicial quality. Such is the contrast that if the 2001 judgment can be described as a shining example of judicial integrity and courage, the 2002 judgment can only be rated as no higher than scrap value. The above contrast is considered strange as both judgments were written by almost the same judges, the cases are so intimately related to each other that one is considered part and parcel of the other, and the personnel engaged in both cases, namely the judge, prosecutors and defence lawyers are exactly the same.

And so in the earlier case, while the judges may appear to act like white knights of the judiciary leading the charge against evil and the corrupted, in the subsequent case, the same judges suddenly appeared like servile stooges serving some mysterious political master.

What caused this transformation? Were they victims of the carrot and stick treatment – that widely applied therapy that has kept the top people of this Country ship-shape for the past decade or two?

As for the chief justice, could he have fallen into the same pit as his two predecessors, described by Anwar as the pit of infamy?

Tragic as it may seem to these judges – for the loss of their personal dignity, the misfortune of their personal degradation pales in comparison with the grave consequences they have wrought to the judicial system in particular, and the Nation in general.

The federal court being the standard bearer of the judiciary, its downfall means the standard of the entire institution has been downgraded. From now on, this latest degrading judgment from the federal court will stand as the new bench mark for all legal officers to look up to and follow.

When judge Paul delivered his judgment 3 years ago, it created a serious commotion and protests nationally and internationally. Now that this same infamous judgment is endorsed by the highest court, it should be 10 times as serious, and yet, its debut caused hardly a stir (relatively speaking), which is testimony to the vastly changed political circumstances at home and abroad.

Our usually righteous bar council, which courageous voiced its outrage 3 years ago, could only mumble in confusion this time. Overseas, the countries that usually champion democracy and human rights led by US and Australia, who sprang to condemnation at judge Paul’s judgment 3 years ago, are now either gently expressing their disagreement or none at all.

But the gravest implication to the Nation is that this Anwar final Judgment signifies the end of hope to effect political changes through constitutional struggles. The sense of hopelessness arising therefrom will drive dissenting struggles to seek extra-constitutional means to achieve its objective – the very root cause of bloodshed and terrorism that we witness around the globe today, most notable among those is the Palestinian struggle.

It is bad news indeed, not only for the reformists who have struggled so hard to bring positive reforms to this Country, but also the Nation at large. Economically, Malaysia will further loose foreign investment as its image to uphold the rule of law takes the plunge. Politically, the hope for quick political reforms is now replaced by slow evolution where nature will take its course.

Kim Quek