FAC News - Wednesday, April 9, 2003 9:55 PM

Day eight of the Anwar Ibrahim Appeal Hearing:

Anwar’s trial was illegal on many counts

Karpal Singh, one of Anwar Ibrahim’s solicitors, told the Kuala Lumpur Appeal Court today that Anwar’s trial was illegal and the court should declare it a mistrial. Karpal then took the court through various incidences where the trial could be declared illegal – any one of them by itself which would have been enough ground to declare a mistrial.

The first and most glaring violation of the law was the previous trial judge’s total disregard for and violation of Section 402A of the Criminal Procedure Code. Under this section of the law, the judge should have allowed the Defence a minimum ten-day postponement to enable it to file its Notice of Alibi.

The judge, however, denied the request and ruled that the trial was to commence without any further delay. But the judge had no prerogative or discretion in the matter. The Section 402A ruling is compulsory and the judge was bound by this ruling and obligated to allow the minimum ten-day postponement.

In justifying his denial for the postponement, the judge ruled that the earlier Notice of Alibi was sufficient and no fresh Notice of Alibi needs to be filed. But the earlier Notice of Alibi was with regards to the earlier charge that read ‘one night in May 1992’.

Anwar’s alibi then was that the so-called ‘scene of the crime’, Tivoli Villa, was still under construction and had not been completed yet. Therefore, it was humanly impossible for Anwar and his Indonesian-born adopted brother, Sukma Darmawan Sasmitaat Madja, to have sodomised Azizan Abu Bakar in May 1992 in the Tivoli Villa.

When the Prosecution realised they had goofed big time, they amended the charge to read ‘one night between the months of January to March 1993, at or about 7.45pm’. But Azizan had already testified he will never forget, as long as he lives, it happened in the Tivoli Villa - so they could not change the place, only the date.

Then, Azizan was made to say that he forgot the real date. It was 1993 and not 1992 as he had earlier stated. Azizan is of low education so he can be expected to be inconsistent, explained the Prosecution. Anyway, no human can be expected to be consistent, the AG added.

But then, Anwar’s alibi was only in respect of May 1992, and his alibi was simply, ‘the place was not ready yet in May 1992’ – an unshakable alibi argued the Defence unless the Prosecution would like to suggest Anwar and Sukma sodomised Azizan in front of hundreds of Indonesian construction workers (hardly likely even for a person like Azizan).

Anwar would need to file a fresh alibi since ‘the place not completed yet in May 1992’ alibi would not apply to the months of January to March 1993. But the judge said “no”, and clearly he violated the law and denied Anwar the opportunity to properly defend himself by preparing his alibi, which is compulsory under the law.

And, on the subject of amendment of charges, the ‘May 1992’ to ‘January to March 1993’ was in fact the second amendment. Earlier, another amendment was made from ‘May 1994’ to ‘May 1992’. But this was merely due to a typographical error, argued the Prosecution and there is nothing sinister about it. They had meant to type ‘May 1992’ but had typed ‘May 1994’ by mistake instead.

Karpal, however, reminded the court that the police had testified it had obtained the ‘May 1994’ date from Azizan’s recorded statement made BEFORE the charge was drawn up. Therefore, ‘May 1994’ was NOT a typographical error but intentionally done. Only when Azizan testified he was never sodomised AFTER May 1992 did they decide to amend the charge.

In short, the Prosecution was lying through its teeth and misleading the court. ‘May 1992’ was not a mistake, Azizan’s testimony was. So they had to amend the charge - not once, but twice - to cover Azizan’s mistake.

“Whoever started this rumour must be dealt with,” said Karpal.

On why the Prosecution decided to charge Anwar and Sukma for sodomy when Azizan never complained to the police about it was another mystery unveiled.

Azizan testified he never told the police Anwar and Sukma sodomised him. He also never lodged a police report. He, in fact, does not know who told the police and he never asked anyone to tell the police on his behalf.

However, somehow, the police decided to charge Anwar and Sukma in the absence of any complaint or police report. How did the police know about it since there was no complaint, and on what ground did they press charges since there was no report?

It was then revealed that the police decided to initiate charges against Anwar and Sukma due to an entirely unrelated case. Azmin Ali, one-time aide to Anwar, and presently a State Assemblyman, made a report about a book called “50 Reasons Why Anwar Cannot Be Prime Minister.” The book alleges Anwar of sexual misconduct.

The Prime Minister Dr Mahathir Mohamad had, in fact, publicly stated that the book is but a pack of lies and only stupid people would believe it. The PM even said that there is a conspiracy to slander Anwar by people who are jealous of him and are trying to ensure he never becomes the next Prime Minister.

The police, however, instead of acting on the report by pouncing on the culprits behind the book, decided to move against the victims of the book. Anwar, instead of the book’s author, had to now face charges.

But the fact still remains the alleged ‘victim’ NEVER lodged any complaint or filed a report. The police, therefore, had no basis to act against Anwar and Sukma. But it did.

“Dato Seri Anwar should never have been prosecuted,” argued Karpal. Karpal then asked the court to declare the trial a mistrial.

The third ground for a mistrial was when they transferred the case from the lower Sessions Court to the High Court, then amended the charges after it was transferred. The High Court did not have the authority to amend the charges, argued Karpal. If the charges were defective, then the High Court should have acquitted the accused without even calling for their defence.

Then, if they still wanted to press charges, they should have gone back to the lower court and filed fresh charges. The charges could not be amended at the higher court because what the higher court was being asked to hear was the original charge.

The trial, therefore, is manifestly illegal, said Karpal.