FAC News - Tuesday, April 8, 2003 10:43 PM

Day seven of the Anwar Ibrahim Appeal Hearing

Finally, we are seeing some action

The Prosecution (Respondent) continued their second day of submissions on the seventh day of the Anwar-Sukma Appeal Hearing today. The Attorney-General, Abdul Gani Patail, continued where he left off yesterday with the two Prosecutors, Azhar Mohamad and Yusof Zainal Abidin, taking over thereafter.

Yusof, who was not able to wrap up his submission today, will continue tomorrow morning on the issue of the credibility of both the Defence’s alibi plus that of the Defence’s witnesses.

Anwar Ibrahim and his Indonesian-born adopted brother, Sukma Darmawan Sasmitaat Madja, are appealing against their nine- and six-year jail sentence respectively - Sukma was sentenced to an additional four strokes of the rattan.

The hearing started on 24 March 2003 and, after five days of Defence (Appellant) submissions, the Prosecution took over yesterday.

Yesterday was quite boring with the Prosecution not actually replying to the various allegations raised by the Defence with regards to political conspiracy, blackmail, extortion, fabricated evidence, inconsistent testimonies, suppressed evidence, police torture, and so on – stuff you normally see in Hollywood movies.

The only quotable quotes worth quoting from yesterday were the Prosecution’s argument that it did not suppress any evidence because there was no evidence to suppress. Hmm… interesting, so they admit they had no evidence do they?

Then they said that time was not important. Only the place Anwar and Sukma were alleged to have committed the crime is. So, never mind if they cannot pin down the actual date this so-called crime happened. As long as they can confirm the place, that’s all that counts.

And, with regards to the Prime Minister’s public announcement in 1997 that Anwar is innocent of the sodomy allegation and that jealous people fabricated this charge to prevent him from becoming the next Prime Minister, this too cannot be considered. That was why they blocked all efforts to subpoena the Prime Minister to court to testify. The Prime Minister was misled by the Special Branch, argued the Prosecution. That was why he made this ‘mistaken’ public announcement.

Phew, if this is all it takes to argue law, I think I want to be a lawyer when I grow up. What a day it was, yesterday.

Today, however, things peak up a bit that had even the lead counsel, Christopher Fernando, breathing fire when it was insinuated he was bordering on incompetence by not adducing certain hard evidence the Defence had on the criminal conduct of the Attorney-General and Chief Prosecutor.

One of the judges, Richard Malanjun, made it worse when he asked whether the issue in question was on record to which Fernanado replied, “No!”

“That’s the end of the story then,” said the judge.

“That’s not the end of the story!” retorted Fernando.

Fernando was quite pissed that the previous Trial Judge, in his written judgment, had left out some crucial proceedings, especially since this was not an isolated case but that there were other instances where important facts were ‘dropped’ from the written judgment.

Tomorrow can be expected to be a ‘hot’ session when the Defence will have another bite of the apple and reply to the Prosecution’s reply. Certainly Fernando is going to list down all those important facts that were dropped from the written judgment which would have changed the whole scenario of the case had they been documented.

The AG and the Prosecutor did not blackmail Dato Nalla; they just plea bargained

What everyone had been waiting for finally arrived. Yusof Zainal Abidin denied the allegation by a prominent lawyer and one-time Bar Council Chairman, Manjeet Singh Dhillon, that the Attorney-General, Abdul Gani Patail, and Azhar Mohamad, had blackmailed his (Manjeet’s) client, Dato Nalla Karuppan, with threats of the death sentence unless he agreed to fabricate evidence against Anwar Ibrahim.

It was not blackmail but plea bargaining, explained Yusof to a most amused courtroom.

On 2 August 1998, Manjeet was called by Gani and Azhar where he (Manjeet) was asked to get his client, Dato Nalla, to fabricate evidence against Anwar. If Dato Nalla was to say that he had arranged several women for Anwar, the charge of being in possession of ammunition would be reduced to that of a lesser charge. If not, Dato Nalla would face the death sentence.

On 12 August 1998, Manjeet signed a Statutory Declaration which he sent to the then AG, Tan Sri Mohtar Abdullah, relating the entire incident. He also wrote a letter detailing what happened.

“The meeting of 2 August 1998 is all about plea bargaining,” said Yusof.

“Manjeet wanted the charge against his client to be reduced to one under the Arms Act 1960 and it would appear that Dato Gani would only agree if Nalla was prepared to cooperate to give information concerning several women.”

“It is something which is permissible under the law.”

“It would be very wrong to allege that it amounted to a threat to maintain a lawful charge if Nalla was not prepared to cooperate.”

Yusof then asked the court, if what the AG had tried to do was so wrong, why did Manjeet agree to talk to Dato Nalla about it instead of protesting?

“Yet, when Dato Gani allegedly told him that he wanted the fabricated evidence from Nalla, there was not a trace of anger or disappointment which he demonstrated through his Statutory Declaration or letter?”

“He meekly said, “If that is your request, I will convey it to my client”,” said Yusof.

Yusof added that the Defence never adduced as evidence the tape recording of the conversation alleging that Gani and Azhar had blackmailed Dato Nalla to fabricate evidence against Anwar. In short, the defence had their chance to prove this serious allegation but it goofed.

Fernando, now infuriated, stood up to say that the Defence had told the court about the existence of the tape and they had actually brought the tape to court and offered to play it for them but the Prosecution did not want to hear it.

The Bench then interjected to ask whether this ‘offer’ was on record to which the Prosecution replied it was not.

“That’s the end of the story then,” retorted Richard Malanjun.

Fernando was not about to let the judge get away with this and he replied, “That’s not the end of the story.”

Fernando then informed the court that the exchange did take place but the judge did not record it.

And this is yet another incident of proceedings in the trial missing from the records.

The Trial Judge may be linked to the PM’ son; but this is not conflict of interest

The AG, Abdul Gani Patail, kicked of the morning by bringing to the court’s attention the Defence’s application to disqualify the trial judge, Ariffin Jaka, due to conflict of interest.

In 1990, the judge was both a director and shareholder in a company, Dataprep Holdings Sdn Bhd, that was owned by the Prime Minister’s son, Mirzan Mahathir.

“Dataprep and Mirzan Mahathir are not parties to the proceedings,” said the AG. “Neither are they an issue in this trial.”

“Therefore, there cannot be any question or any real likelihood of bias on the part of the learned judge.”

“The only common factor between the learned judge and the Prime Minister’s son is that they were Directors of Dataprep up to 1990.”

“It is grossly inadequate and manifestly unsafe to allege bias on the part of the learned judge by relying on this loose association of facts.”

“It is far too remote to even suggest that such circumstances could give rise to a real danger of bias on the part of the learned judge when he heard this case.”

Time may be the essence, but it is not important

On 29 September 1998, Anwar and Sukma were charged for sodomising Azizan ‘one night in the month of May 1994’. Soon after, their trial started, and the ‘victim’, who is also the Prosecution’s star witness, testified that he was never sodomised after May 1992.

On 27 April 1999, the charges were amended to ‘one night in the month of May 1992’.

The Defence claims that this amendment was to match Azizan’s testimony. The Prosecution however, says that the ‘1994’ date was a typographical error and that the real date should have actually been ‘1992’ - therefore the need for the amendment.

On 27 May 1999, the Defence filed a Notice of Alibi proving that the alleged scene of the crime, Tivoli Villa, had not been completed yet, so it would have been impossible to have sodomised Azizan in that place in May 1992. And Azizan had testified he will never forget, as long as he lives, that it had occurred in the Tivoli Villa.

So, on 7 June 1999, the charges were amended, yet again, to read ‘one night between the months of January to March 1993, at or about 7.45pm’. In the meantime, Azizan changed his testimony to say that the sodomy did in fact occur way past May 1992, and not as he had earlier testified.

Yesterday, the Prosecution said that the date may be hazy, but the place still remains the same - and that’s all that counts.

Dates are important only in specific cases, said the Prosecution. In the case of Anwar’s and Sukma’s sodomy trial, dates are not that crucial.

“From time immemorial, dates have never been important in an indictment,” said the AG.

However, because of the amendment to the date in the charge, the earlier Notice of Alibi filed was no longer valid. It was an alibi to contest the ‘May 1992’ charge. It would not support the ‘one night between the months of January to March 1993, at or about 7.45pm’ charge.

So the Defence asked for a postponement of 12 days to file a fresh Notice of Alibi. But the Trial Judge turned down this request.

“The learned trial judge finally ruled, shortly before the trial finally commenced on 16 June 1999, that the second appellant need not file a fresh Notice of Alibi, and ordered that the trial was to commence without any further postponements,” said the Prosecution.

And the next point is where it gets really interesting.

Anwar’s and Sukma’s alibi may be airtight, but they should be rejected

The time immemorial debate as to whether the accused must prove their innocence or the Prosecution needs to prove their guilt was taken to new heights today when the court was told it is Anwar’s and Sukma’s task to prove they are innocent of the charges of sodomising Azizan Abu Bakar.

Anwar and Sukma not only had to prove their innocence, but they did manage to do so, and they did this by providing alibis for the period from 1 January 1993 to 31 March 1993, the date (one night in those 90 days) they were supposed to have sodomised Azizan.

But the Prosecution said their alibis should be rejected because it had not followed proper procedure. Their alibis may be good, but it was not proven the right way, so it should not be considered.

The Defence had earlier asked that the trial be declared null because they had requested for a twelve-day postponement to enable them to file their Notice of Alibi, which is mandatory under Section 402A of the Criminal Procedure Code, but the trial judge had rejected this request.

The trial judge cannot use his discretion in this matter, argued the Defence. It is mandatory and the trial judge should have complied with this rule.

And, now, the Prosecution has jumped on the bandwagon and agrees with the Defence. However, it is not that the trial should be declared null as what the Defence wants, but that Anwar’s and Sukma’s alibis should be declared null instead.

“We agree that the learned judge misdirected himself for failing to comply with the requirements of Section 402A of the Criminal Procedure Code to exclude the evidence in support of Anwar’s alibi on the ground that he did not serve a Notice of Alibi on the Prosecutor at least ten days before the commencement of the trial,” said the Prosecution.

But the amendment to the charges was made DURING the trial - on 7 June 1999 - and not BEFORE the trial. So how could the Defence have filed their Notice of Alibi ten days BEFORE the trial? Further to that, the Defence DID ask for a ten-day postponement to enable it to file this notice, but it was the judge who turned down the request.

Well, the judge was wrong, says the Prosecution, so Anwar’s alibi should be rejected. Anwar, therefore, no longer has an alibi for the period of January to March 1993, which means he can no longer prove he was never at the Tivoli Villa.

The prosecution concluded by saying, “In conclusion, it is submitted that his honourable court ought to exclude the evidence of Dato Seri Anwar Ibrahim on the ground that he did not serve a notice to the Public Prosecutor in accordance with Section 402A of the Criminal procedure Code.”

Then, to add insult to injury, the Prosecution went on to say, “But the argument on the unconstitutionality of the trial ought to be rejected because the evidence in support of the alibi, if excluded, would be rightly excluded.”

So, there you have it. The Trial Judge was wrong. Even the Prosecution agrees with this. He broke the law. Anwar should have been given the postponement to file his Notice of Alibi. This is mandatory and the Trial Judge ought not to have used his discretion in the matter.

But the trial itself is not defective. So it should not be declared a mistrial. Instead, only Anwar’s alibi should be rejected. So, Anwar would no longer be able to prove he was never in Tivoli Villa those entire 90 days from 1 January 1993 to 31 March 1993.

Now, that’s one very sleek way to screw the one-time Deputy Prime Minister of Malaysia. It looks like it was not Anwar who sodomised Azizan after all, but the AG who is screwing Anwar. And what a clever way to do it too! Use the Defence’s argument. Agree with them that the Trial Judge acted illegally. Then, use the Trial Judge’s illegal act against the very person who brought it to the court’s attention - though it was he in the first place who raised the protest.