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FAC News - Thursday, April 10, 2003 6:54 PM Day nine of the Anwar Ibrahim appeal hearing: Anwar’s appeal hearing ends; Defence winds up its submission The Anwar-Sukma appeal hearing ended at 2.00pm today with the Defence (Appellant) wrapping up its submission by reiterating to the Kuala Lumpur Appeal Court that Anwar Ibrahim and his Indonesian-born adopted brother, Sukma Darmawan Sasmitaat Madja, are not only the victims of a most unfair trial, but the trial itself violated Malaysia’s Constitution on many counts and should, therefore, be declared a mistrial. (Anwar’s trial was illegal on many counts – FAC News 9 April 2003) (Anwar could have been acquitted if the judge had not violated the law – FAC News 2 April 2003) The court was told that the alibi adduced by the Defence was an absolute defence, contrary to what the trial judge, Ariffin Jaka, had ruled – that the Defence’s alibi was not conclusive. (Anwar’s alibi is as strong as the Rock of Gibraltar – FAC News 2 April 2003) It is not the Defence’s job to prove conclusively that the accused is innocent, the court was reminded. Instead, it is the Prosecution’s job to prove the guilt of the accused. All the Defence needs to do is to raise reasonable doubt. In this case, the Defence not only succeed in raising more than reasonable doubt, but it actually managed to prove that Anwar was never at the alleged scene of the crime. If a person has been charged for a crime that is supposed to have been committed at a certain place on a certain date, and if the accused can prove that he or she was never at that place on the time in question, argued the Defence, then it ends there. There is no longer any necessity to proceed with the trial. The court was also reminded about the basic fundamental principle of law. And, if the trial judge violates this basic fundamental principle, then the judge would be guilty of judicial misconduct. And, in Anwar’s and Sukma’s trial, the trial judge was clearly guilty of judicial misconduct – on more than one count. The judge misdirected himself on numerous occasions, the court was told. On the burden of proof, it was shifted to the Defence whereas it should have been the Prosecution’s job to prove guilt. On the alibi, the Defence had proved beyond reasonable doubt Anwar’s alibi, but still the judge raised his doubts – though he could not be specific about it. In such a case, if there were still any doubts, the benefit of the doubt must be given to the Defence and not to the Prosecution. On the credibility of both the Defence and Prosecution witnesses, the credibility of the Defence witnesses was questioned all along the way. Even when documentary evidence was adduced to support their testimonies, the judge would say he doubted the authenticity of the documentary evidence. And, when the maker of the document was called to court to testify, the judge would still not accept the validity of the documents. There was nothing the Defence
could do to satisfy the judge. For example, in one incident - the
mattress incident - three different people, totally unrelated to
each other, came to court to testify that the mattress was only
delivered to the Tivoli Villa on However, the credibility of the Prosecution witnesses was ruled unshakable even when it had been proven they lied. Instead, these lies were accepted and justified as ‘inconsistencies due to failing memories’ which cannot be blamed to them as ‘every human can be expected to be inconsistent’. While the trial judge ruled that Azizan Abu Bakar’s testimony is unshakable and his credibility ‘as strong as the Rock of Gibraltar’, all the Defence witnesses such as Raja Kamaruddin Raja Wahid, Azmin Ali, Jamal Abder Rahman, Dato Shafee Yahya, Zull Aznam Harun, and so on, were shot down. In some instances, the judge even refused to allow the Defence to call them as witnesses. On Raja Kamaruddin’s testimony, Christopher Fernando, Anwar’s lead counsel, asked, “Why can’t he be believed? Why did the Prosecution not bring in witnesses to rebut Raja Kamaruddin’s testimony?” During the trial, Raja Kamaruddin
had revealed he had been invited to join a conspiracy to bring Anwar
down. The meeting was held in the office of Aziz Shamsuddin,
the Prime Minister’s Political Secretary, on In the meeting, Aziz confirmed that Ummi Hafilda Ali and Azizan had been bribed to fabricate charges of sexual misconduct against Anwar; basically that Anwar had sodomised Azizan. When Raja Komando asked whether there was any other way to bring Anwar down Aziz replied, “Sodomy would be the best way. Other ways would have no affect.” The Prosecution, however, did not subpoena Aziz to court to rebut Raja Kamaruddin’s testimony. They just said Raja Kamaruddin cannot be believed without proving so. One of the Prosecution witnesses, Musa Hassan, testified that Anwar had directed him to stop the investigation against him (Anwar). However, it was not Anwar but Malaysian Prime Minister Dr Mahathir Mohamad who, in 1997, had said that the allegations against Anwar are false and fabricated by people jealous of Anwar and who were trying to prevent him from becoming the next Prime Minister, the court was told. “The PM himself made a public statement, “I consider the matter closed”,” said Fernando. (Special Branch investigation proves Anwar is innocent - FAC News 26 March 2003) The judge was looking for every small issue to convict Dato Seri Anwar, argued Fernando. “He came to court with a closed mind.” “Even the judge himself agreed that it is very easy to accuse someone of sexual misconduct but very difficult to rebut.” “Anyone can accuse someone of sodomy. How do you defend yourself of a sodomy charge? In a sexual offence there are no witnesses.” “Today, Dato Seri Anwar can be accused of sodomy. Tomorrow, it could be the AG, Abdul Gani Patail.” At this point, the AG stood up to protest being made the brunt of Fernando’s ‘joke’. “Why did Azizan have to wait five years before he made the accusation against Dato Seri Anwar? He said he did it in the interest of religion and honour.” “However, before the trial could be over, Azizan was arrested and convicted of a sexual offence. He got caught with his pants down.” “Doesn’t this speak volumes for his credibility?” “The AG said that there are no inconsistencies between Azizan’s testimony in the first trial and the second trial.” Fernando then took the court through Azizan’s testimony. (i) Q: Did you tell the police that you were sodomised in 1994? A: No. (ii) Q: Who fabricated that evidence? A: I don’t know. Q: Did you tell the police you were sodomised in 1992? A: No. (iii) Q: Who told the police you were sodomised in 1992? A: I don’t know. 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 had to be amended to 1993 because the building was not even ready for occupation? A: I don’t know. (iv) Q: Were you told to change the date to 1993? A: Yes. Q: Did you agree to this proposition? A: Yes. Q: Who asked you to change the date to 1994? A: SAC Musa bin Hassan. Azizan further testified as follows: Q: I put it to you; it was because Dato Seri Anwar did not do anything to you that is why you kept visiting him between 1992 and 1997. Otherwise you would have kept far away from him. A: Yes, it’s true. The question was then repeated. A: Yes, it’s true but I don’t understand the words ‘did not do anything’. Q: Dato Seri Anwar DID NOT sodomise you. That is why you kept visiting him and his family between 1992 and 1997. A: I agree that he did not sodomise me. That is why I continued to visit him between 1992 and 1997. The Prosecution was not satisfied with Azizan’s answers so it asked him again, “Did Dato Seri Anwar sodomise you after September 1992?” And Azizan’s clear and unambiguous answer was, “After September 1992 Dato Seri Anwar DID NOT sodomise me until today.” “Azizan said he was terrified of Dato Seri Anwar, yet he continued to go to the Tivoli Villa three times. If he was so terrified of Dato Seri Anwar why did he continue going to his house as well as to the Tivoli Villa?” asked Fernando. And Fernando’s argument is; because Azizan never was sodomised by Anwar. That was why he continued going there. The entire case against Anwar was based solely on Azizan’s testimony – that he was sodomised in the Tivoli Villa, one day between January to March 1993. Since Azizan’s testimony said otherwise and Anwar’s alibi proved it could not have happened, the entire case against Anwar was demolished. This was not, however, the way the judge saw it. The judge ruled instead that Azizan’s testimony is intact while Anwar’s alibi is suspect. Fernando then brought to the court’s attention the testimony of a prominent lawyer and one-time Bar Council Chairman, Manjeet Singh Dhillon, who had accused the AG and Prosecutor of attempting to fabricate evidence against Anwar. But the trial judge, then, had ruled Manjeet’s evidence as not relevant. Fernando then told the court
that not only did the AG use blackmail to try to fabricate evidence
against Anwar, but when he (Anwar) was beaten to near-death the
night of his arrest on The AG and Prosecutor, therefore, should have been disqualified from prosecuting the case and instead should face a Royal Commission of Inquiry and be brought to book if they are proven to have acted criminally. (Letter from Manjeet Singh Dhillon to Tan Sri Mohtar Abdullah, 12 October 1998) (Statutory Declaration by Manjeet Singh Dhillon, 9 November 1998) What the trial judge should have considered is not whether the accused could or could not have committed the crime but whether there is enough evidence to convict the accused, argued Fernando. “The judge did not exercise a judicial mind but acted like a layman in convicting Dato Seri Anwar.” “What the judge should have concerned himself with is whether there are credible, reliable and conclusive evidence to convict the accused.” “Time after time the judge misdirected himself. This is a case of failure of justice.” The appeal hearing adjourned with the three-man panel of judges reserving judgment, and it is not known when they will come back with their decision. There is also no decision yet on Anwar’s bail application though Anwar would have completed the sentence on his first conviction in four day’s time. As to how the judges would rule? If based strictly on judicial considerations, Anwar won his case the first day of the appeal hearing itself. Even one of the many violations of the law is enough for the court to declare Anwar’s trial a mistrial. But the judges may use political considerations, instead, in arriving at their decision, as clearly there is great pressure from the top not to acquit Anwar or allow him bail. The only question now remaining is; will the judges act as judges or tools of the political masters? Let us hope they have retired not only to consider the overwhelming evidence in favour of Anwar and Sukma, but also to reflect, question their conscience, and to do some soul searching. Prophet Muhammad has said that two out off three judges are destined for Hell. They can prove the Prophet wrong if they so desire. It is left entirely to them. How long more do they feel they have on this earth before they go to meet their Maker? Maybe the fate of the previous Attorney-General who is now in limbo should be the reminder to these three judges that it is still not too late to redeem their souls.
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