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FAC News - Thursday, January 1, 2004 9:32 AM PROCEEDINGS OF THE NINE-DAY APPEAL HEARING AGAINST ANWAR IBRAHIM’S SODOMY CONVICTION AND NINE-YEAR JAIL SENTENCE INTRODUCTION TO THE ANWAR IBRAHIM TRIALS Dato’ Seri Anwar Ibrahim’s sodomy trial is the first sex-related case in Malaysian history where the entire case rested on the testimony of only one witness, the prosecution’s star witness, with no other corroborating evidence or witnesses. In this case, the prosecution’s star witness, Azizan Abu Bakar, who is also the ‘victim’, was alleged to have been sodomised by both Anwar and his adopted brother, Sukma Darmawan Sasmitaat Madja. Further to that, the alleged victim testified in court that Anwar DID NOT sodomise him – and he testified so THREE times under oath. Dato’ Seri Anwar Ibrahim was
dismissed as On Anwar is the first person in Malaysian history to be convicted for the crime of ‘corruption’ where no financial gain is involved. Normally, under the particular section of the law that Anwar was charged, money, shares, or some form of asset needs to change hands before one can be brought up on corruption charges. Anwar’s alleged crime was that he had ‘abused his authority’ by instructing the Special Branch to coerce witnesses to retract their allegations of sexual misconduct against him. On 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
second (sodomy) trial took 118 days to complete and appears to be
the longest High Court trial in the country’s history. On Anwar and Sukma appealed against
this second conviction (Anwar lost his appeal on the first conviction)
and, after an unusually long two-and-a-half year wait, the case
finally came up for hearing at the Kuala Lumpur Court of Appeal
on The appeal hearing took nine
days to complete and ended on Anwar and Sukma are now appealing their conviction and sentence to a higher court, the Federal Court, the date of the hearing which, at this point of time, has not been decided yet. This is a report of what happened
over those nine days during the appeal hearing from 24 March to
THE DEFENCE TEAM 1. Christopher Fernando 2. Karpal Singh 3. Gurbachan Singh 4. Pawancheek Marican 5. S. Sankara Nair 6. Zulkifli Nordin 7. Jagdeev Singh 8. Gobind Singh Deo 9. Saiful Hizam Ramli 10. Marisa Regina THE PROSECUTION TEAM 1. Attorney-general, Abdul Gani Patail 2. Azhar Mohamad 3. Yusof Zainal Abidin 4. Shamsul Sulaiman 5. Ishak Mohd Yusof 6. Ahmad Fairuz Zainal Abidin THE APPEAL COURT JUDGES 1. Dato’ Pajam Singh Gill 2. Dato’ Hashim Dato’ Yusoff 3. Dato’ Richard Malanjun SUMMARY OF THE NINE-DAY ANWAR IBRAHIM APPEAL HEARING These are the salient points of the appeal hearing. It was revealed that the Director of the Special Branch had approached Anwar’s Chief Private Secretary then, Azmin Ali, to solicit his help in getting his sister, Ummi Hafilda Ali, to retract the sexual misconduct allegation against Anwar. When Azmin replied that that would be quite difficult to do because, since the allegations had surfaced he no longer talked to his sister, the Director then asked to see Anwar in an attempt to persuade him to lodge a police report to enable them to start investigations to find out who was behind the conspiracy to frame him. (No police action can be taken unless a police report is first made). And this was the basis of Anwar’s so-called ‘corrupt act’ - the accusation that he had ‘summoned the Special Branch to see him’ when it was the Special Branch that was ‘chasing’ him. Anwar then consulted the Prime Minister, Dr Mahathir Mohamad, who suggested that Anwar just ignore the whole thing. Mahathir said he too is the target of many accusations and allegations and, if he acted on every one of them, he would no longer have any time to do other work. Anwar relayed this decision to the Special Branch who still insisted that he allow them to pursue the matter on grounds of national security. The Special Branch regarded an accusation such as this, aimed at the Deputy Prime Minister, as something very serious and tantamount to trying to sabotage the country. The Special Branch, therefore, needed to get to the bottom of it and flush the conspirators out for the sake of the country. After a thorough investigation, the Special Branch sent their report to the Prime Minister saying that the allegations against Anwar were false and fabricated by people in high places who were trying to bring Anwar down. The Prime Minister then told the nation to ignore the lies that are being spread by people jealous of Anwar who are trying to prevent him from becoming the next Prime Minister. The Prime Minister also said only stupid people will believe these lies. The main charges against Anwar were that he had sodomised his wife’s driver (second conviction) and that he had tried to get the Special Branch to cover it up (first conviction). The so-called victim, Azizan Abu Bakar, though, testified that he never made any complaint or police report with regards to the alleged sodomy act and, in fact, did not even tell the police that he was sodomised. When asked on what basis, therefore, did the police decide to prosecute Anwar, the Special Branch Director testified that it was based on the book “50 Reasons Why Anwar Cannot Become Prime Minister” – the first time the police acted without the benefit of a complaint or a police report from the ‘victim’ of the crime. Prior to that, the court had granted an injunction against the book and the book’s author was brought before the court and charged for publishing slander and unsubstantiated accusations. It took the nation by surprise when Anwar, the victim of the slander, was charged instead, even though no report was made against him. Further to that, the judge who granted the injunction against the book was immediately transferred. Other perplexing incidences that were revealed in the appeal hearing - which violates judicial norms and makes one wonder how Anwar could have been found guilty of both the corruption and sodomy charges - are:
These were but just some of the numerous peculiar goings-on during the Anwar Ibrahim trials that made a mockery of the entire judicial system. In spite of all this, the court still found Anwar guilty of both corruption and sodomy, and it handed down a most excessive sentence that has never been handed down even for real corruption cases that involved hundreds of millions of public funds. DAY 1 – 24 MARCH 2003 Prosecution’s ‘star witness’ proven unreliable; admits Anwar never sodomised him Christopher Fernando, Anwar
Ibrahim’s lead counsel, kicked off the appeal hearing in the However, Fernando said, Azizan consistently contradicted himself during the course of the trial and, therefore, is an unreliable witness. In fact, the court was told, not only should Azizan have been declared an unreliable witness, but he also should have been impeached and cited for perjury. “Instead,” argued Fernando, “The learned judge held the witness to be credible, reliable and honest.” “This witness is one of the most unreliable witnesses ever to have come before a court of law,” said Fernando. “His evidence is riddled with inconsistencies and outright lies. He has given three different versions of what actually transpired.” Fernando explained that in the first (corruption) trial, Azizan gave evidence that he was sodomised by Anwar but, in the second (sodomy) trial, he testified he was never sodomised by Anwar. “He admitted not once, but three times that between the years 1992 and 1997 he was never sodomised by Anwar, and that was why he continued to visit Anwar. If not, he would have kept far away from Anwar.” “He admitted this in the most unequivocal terms,” said Fernando. “The judge himself was taken aback.” Fernando said the judge then asked him to repeat the question as maybe Azizan did not understand it. Fernando said he then asked Azizan a second time and, for the second time, Azizan admitted Anwar did not sodomise him. “I then asked him third time just to make sure and to be fair to him,” said Fernando, “And, for the third time, he admitted that Anwar did not sodomise him.” “After several days, and during the re-examination, a leading question was asked by the prosecution which was most unfair and the judge ought to have rejected it.” And the question was, “After 1992, were you sodomised again?” “The defence objected to this question but the judge allowed the question to be asked,” explained Fernando. “However, in response to this leading question, whether he was sodomised from 1992 to today (1998), Azizan, again, said he was never sodomised.” “The judge himself made specific findings. On one occasion he said, “This witness says one thing today and another thing tomorrow”.” The judge also said, “This witness is very evasive. He refuses to answer even simple questions”.” “The judge himself found Azizan an unreliable witness.” “It is mind boggling that, after making such a strong statement, the judge can turn around and say the witness is credible, honest and trustworthy.” “The judge’s statement contradicts his own findings.” Prosecution desperate; charges amended to fit witness’ testimony The prosecution amended the charges against Anwar Ibrahim, twice, in a desperate attempt to fit it to the testimony of its star witness, Azizan Abu Bakar. “The original charge was ‘one night in the month of May 1994’,” said Christopher Fernando, Anwar’s lead counsel. “Then, it was revealed that the Tivoli Villa, the place the alleged crime was supposed to have been committed, had not been completed yet.” “The prosecution found itself in a terrible dilemma. How could sodomy have taken place in a building that had not been completed?” “So the charge was amended to ‘one night in the month of May 1992’,” explained Fernando. But this date still could not fit Azizan’s testimony so, in a desperate attempt to salvage their case, it was again amended to “committed the offence of sodomy at 7.45pm between the month of January to March 1993,” argued Fernando. “First 1994, then 1992 and, finally, 1993,” said Fernando to the court that had the spectator’s gallery by now in stitches. “The significance of all this was lost on the judge. He was not able to appreciate what was happening.” “Why the need to amend it to a date in 1993? They could not go backwards to 1992, or earlier, as the building was not even built yet. So the only way was to go forward.” “Can anybody, without exception, answer a charge as vague as that, all of us included?” asked Fernando. “One evening in 90 days! I cannot conceive of a more vague and uncertain charge - a most unfair charge.” “The amendments to the charge are not Bona Fide.” “ The judge then asked, “You mean the amendments were Mala Fide?” to which Fernando replied, “Yes.” “The charge was amended to fit Azizan’s testimony,” added Fernando. Azizan, however, testified that he was never sodomised from 1992 onwards. “He admitted not once, but three times that between the years 1992 and 1997 he was never sodomised by Anwar, and that was why he continued to visit Anwar. If not, he would have kept far away from Anwar,” said Fernando. “Tan Sri Mohtar Abdullah (the Attorney-General then) said, “We have all the records and evidence pertaining to Dato’ Seri Anwar Ibrahim’s movements in and out of the country between 1992 and 1998’.” “If you have all the records and evidence of Dato’ Seri Anwar’s movements, why not produce them? Why such a vague date in the charge?” “The conclusion to this would be, the records and evidence did not show that Dato’ Seri Anwar was at the Tivoli Villa between January and March 1993.” “These are trumped-up charges. It has to be. There are no two ways about it.” “The Prime Minister and Deputy Prime Minister are followed every hour of the day for their own protection and the records of their movements are available.” “The judge failed to invoke the provisions in section 114(g) of the Evidence Act against the prosecution for failing to produce evidence and records showing Dato’ Seri Anwar’s movements.” “The records, if produced, would exonerate Dato’ Seri Anwar and would show he was never there (at the Tivoli Villa) during the 60 days (January to March 1993).” Police coached Azizan on what to testify It was the police that coached Azizan Abu Bakar, the prosecution’s star witness, on what to testify in court. Christopher Fernando said he had asked Azizan, “Did you tell the police you were sodomised in 1992?” “Azizan replied that he cannot remember.” “After further questioning, he then said he did not tell the police he was sodomised in 1992.” “I then asked him, ‘who fabricated the evidence?’” “And he replied, he does not know.” “I further asked him, ‘did you tell the police you were sodomised in May 1994?’” “He said a number of times that he cannot remember.” “Finally, he admitted he did not inform the police he was sodomised in May 1994.” The court was told that Azizan then revealed he was called up by the investigation officer, SAC Musa Hassan, in June 1999. “I then asked him, ‘were you asked to change the date to 1993?’” “And he replied, ‘yes’.” “When asked, ‘who asked you to change the date’, he replied ‘police officer’. Finally, he admitted it was SAC Musa Hassan.” “Shocking and chilling”; Evidence against Anwar was fabricated “Shocking
and chilling!” That was how Christopher Fernando described the conspiracy to fabricate
evidence against the one-time Deputy Prime Minister of Fernando then related the meetings another lawyer, Manjeet Singh Dhillon, had with the two Chief Prosecutors, one of whom is now the Attorney-General. In the meetings, the two prosecutors, Abdul Gani Patail and Azhar Mohamad, used extortion and blackmail to try to get Manjeet’s client, Dato’ Nalla Karuppan, to fabricate evidence against Anwar. The prosecutors threatened Dato’ Nalla with the death sentence unless he agrees to testify that he was instrumental in procuring women for Anwar. Dato’ Nalla, however, refused, saying that, short of lying, there is no way he could do that. They then continued to threaten both him and his family. At first they wanted him to implicate Anwar with two women, then three, then four, and finally they settled for five women, Fernando revealed. The prosecutors also admitted they were looking into matters on behalf of the Prime Minister. On The Attorney-General apologised for not taking action on Manjeet’s complaint while the two prosecutors remained silent and did not deny the allegation. They also tried to blackmail another of Manjeet’s client, Dr Munawar Anees, to implicate Anwar with sexual misconduct. “This shows the police not only tried to get Azizan to lie, but also Dato Nalla and Dr Munawar as well,” said Fernando. The court was told, Anwar did
not leave office until DAY 2 – 25 MARCH 2003 Ummi confesses to being the architect behind the Anwar sodomy allegation; a purely fabricated charge In a new twist to the Anwar Saga, it was revealed that Ummi Hafilda Ali was the architect behind the accusation that Anwar had sodomised Azizan Abu Bakar. And, for this, she was disowned by her father just months before he died of a broken heart. Christopher Fernando told the
What is most interesting by this revelation is that: 1. Said Awang went to meet Azmin BEFORE he met Anwar. Therefore, the allegation that Anwar had abused his position by summoning the Special Branch, and that he asked them to force Ummi and Azizan to withdraw the sodomy allegation, is a fallacy. In fact, it was not Anwar who summoned Said Awang to see him, but the Special Branch Director who took the initiative to meet Anwar. 2. The idea to persuade Ummi and Azizan to retract the sodomy allegation came from the Special Branch and not Anwar. During the earlier trial, it was revealed that the Special Branch tried to convince Anwar to “take action” but that Anwar refused, until pressed further by the Director who said it was “for the sake of national security” before Anwar agreed that action be taken. 3. The Special Branch was fully aware that it was Ummi who was behind the sodomy allegation and that Azizan was merely the instrument to the whole thing. That was why they wanted Azmin, her brother, to try to persuade Ummi to retract the allegation. This sheds light on the previous day’s proceedings where Fernando revealed that Azizan testified three times, under oath, that Anwar never sodomised him – an admission that took even the trial judge aback. Fernando related how Said went to meet Azmin to request a meeting with Anwar Ibrahim. In the meeting with Azmin, Said asked him whether Ummi is his sister and Azmin confirmed so. Said Awang then asked Azmin whether he was able to persuade his sister to withdraw the sodomy allegation against Anwar but Azmin replied that would be impossible as he no longer talked to his sister since the allegation surfaced. The Special Branch was aware that Ummi was behind the accusation and was, in fact, the plotter of the whole thing. And, the period when this discussion with Azmin was going on, the Special Branch had not met Anwar yet. Azmin then called the family together to discuss the issue. In all, three meetings were held that included Ummi herself. Ummi at first denied she had written the letter to the Prime Minister accusing Anwar of sodomy. Azmin then advised his sister to steer clear of the conspiracy, and that was when she admitted this would be impossible to do as she had been promised money and contracts for her role and, in fact, money had already changed hands. Ummi later confessed to her father her involvement in the conspiracy and that it was actually she who had written the letter to the Prime Minister. The father, a religious teacher, then disowned her and, soon after, died of a broken heart, never forgiving his daughter for what she had done. It was clear, from the testimony in court, that Azizan’s letter to the Prime Minister had been written by Ummi. Ummi had confessed to this. Azizan, in turn, during the course of the trial, admitted that Anwar did not sodomise him. However, when the defence tried to bring up this very crucial bit of evidence during the trial, the trial judge disallowed it. The judge refused to allow the letter to be admitted as evidence or to allow Ummi to be called to court to testify. Ummi’s role in this whole thing was clear and indisputable. The fact the sodomy accusation against Anwar was false was apparent. Just before he died, Ummi’s father wrote an open letter to Harakah, an opposition newspaper, explaining the whole matter and, in no uncertain terms, accused his daughter of involvement in the conspiracy to frame Anwar and of being the person who wrote the letter to the Prime Minister. Had the judge allowed this crucial bit of evidence to be admitted, argued Fernando, it would have changed the entire complexion of the case and the judge would have been hard-pressed to find Anwar guilty. Attempt after attempt was made to frame Anwar of sexual misconduct charges; and Pak Lah is involved too “There was an evil plot to
secure a conviction through devious means,” said Christopher Fernando
on the second day of Anwar’s appeal hearing in the Fernando then told the court that attempt after attempt was made to frame Anwar on sexual misconduct charges. One such case was Dr. Munawar Ahmad Anees, then one of Anwar’s speech writers, who was arrested and subjected to physical and mental torture to force him to admit he had a homosexual relationship with Anwar. Fernando then took the court
through the lengthy Affidavit signed by Dr Munawar
on The torture he endured finally broke him and he admitted to the ‘crime’, which he later retracted in his Affidavit. Fernando then brought the court’s attention back to the Manjeet Singh Dhillon matter that was raised in court yesterday to emphasis his point of yet another attempt to frame Anwar. At this point, Fernando called upon the court to recommend a Royal Commission of Inquiry be established to investigate Manjit Singh Dhillon's serious allegation against Abdul Gani Patail and Azhar Mohamad as this is a most serious matter affecting the administration of justice and the rule of law. "If they are found not to be involved in extorting fabricated evidence, then their names will be cleared," said Fernando. "It will be to their benefit." "If they are involved, then they ought to be brought to justice. That is the only way to resolve this pressing problem and to restore public confidence." Clearly there was a concerted
effort to frame Anwar. But these attempts were not confined to “We are trying to show a pattern,
how witnesses were approached to give fabricated evidence and these
efforts extended beyond the shores of Jamal is an American citizen
of Arab descent who operates a limousine service in In September 1998, soon after Anwar’s dismissal and subsequent arrest, a Malaysian Diplomat, Mustapha Ong, asked Jamal to declare that he had procured women and young boys for Anwar. Fernando then read out the
evidence of Jamal Abder Rahman who, on
Fernando: Did you provide limousine services to Dato’ Seri Anwar? Jamal: Yes, every time he visited
Fernando: Did you yourself drive these VIP’s around? Jamal: Yes. Fernando: In September, 1998
did you go to the Malaysian Embassy in Jamal: Yes, I did. Fernando: Did you meet a Malaysian diplomat by the name of Mustapha Ong? Jamal: Yes. Fernando: During that meeting what transpired? Jamal: He asked me to go to
Fernando: When? Jamal: The following day, at
Fernando: In your limousine? Jamal: No, in my private car, a Cadillac. Fernando: What transpired during the journey? Jamal: We drove off and just
before the He told me, "If you can say that he made sexual advances at you, we can make some money." I got very upset. Then he said, "Relax. Why don’t you say that you brought some girls and boys for him." I said, "Look here Mr
Ong, leave me alone; I don’t care about When we drove on I said if you have a videotape, why the heck do you want me for?" He replied, "So that the Americans will know too! When we arrived in I said: "You are looking at the most crazy man in the world. That’s me." And I told him: "You change the name from Jamal to Mustapha Ong and say that Anwar Ibrahim made sexual passes ... made love to you. Say anything and you make the money!" I then said, "Have a good day!" I left and went back to I told Dato’ Dali what transpired during the journey. He was very upset. He said, "Jamal, I assure you I have nothing to do with it. The Embassy has nothing to do with it." And he was very upset; I could see the fire on his face. He said, "You should have slapped him on the face." I said, "I should have done that." He told me to forget the whole thing. Three months passed and the whole thing kept coming to my mind. I wanted to get if off my chest. I went to see one Sheikh Thahar, a friend of Dato’ Seri Anwar. He is the president of an Islamic
University in Subsequently I drove down from
Then I said to him, "What you want me to do, I will gladly do." I went with his son to see a lawyer and told the lawyer what happened and he wrote it down. The lawyer asked me if I was prepared to take a lie-detector test. I said, "If you want me to take a lie-detector test, I take a lie-detector test, if you want to put me to sleep I’ll go to sleep." Fernando: Did you sign an affidavit? Jamal: Yes. Then I left. Fernando: Then what happened? Jamal: I think Sheikh Thahar
got in touch with somebody in Fernando: Did Sheikh Thahar say anything about religion? Jamal: He said, "If you shut out the truth, you are the devil’s brother!" Fernando: Did Dato’ Seri Anwar make any passes at you or sodomise you at any time? Jamal: No sir, he did not, he never did and never will! Fernando: So this man wanted you to fabricate this evidence, did he not? Jamal: I think so. Fernando: On the way to Jamal: Yes, he did. Fernando: What did he say to you? Jamal: He asked me to meet somebody from Abdullah Badawi’s staff so that I can collect the money but I refused. Fernando: Why did he want you to see somebody from Abdullah Badawi’s staff? Jamal: I understood, by that, if I say what they wanted me to say, I will get the money. The burden of proof is on the prosecution but was shifted to the defence instead An accused person is not required to prove his innocence. Instead, his accusers have to prove his guilt. In Anwar Ibrahim’s case, however, he was placed in an unenviable position of having to prove his innocence. Anwar was charged for ‘committing
sodomy one night, at Yet, the judge still insisted that Anwar had not established his alibi. But the judge was not able to say which one of those 90 days Anwar’s alibi had not been established. “All an accused person has to do is to create reasonable doubt,” said Christopher Fernando. “He does not have to prove anything or establish his defence beyond a reasonable doubt.” “He is not required to prove anything conclusively with respect to his defence of alibi. But the judge held he had to and the he had not proved it 'conclusively'.” “Conclusive proof is a standard even higher than beyond reasonable doubt.” Fernando then told the court that Anwar was placed in a most unusual situation where the defence had to prove his innocence instead of the prosecution having to prove his guilt. “This is most unusual; alien to the law,” argued Fernando “All Dato’ Seri Anwar had to do was to raise reasonable doubt.” “Between 4 February and “There was no rebuttal at all by the prosecution to counter Dato’ Seri Anwar’s alibi.” “The prosecution failed to observe this very basic principle of law.” “Dato’ Seri Anwar had to prove
he was not in the Tivoli Villa in the 90 days between 1 January
and “Instead, it should have been the prosecution’s task to prove that he was there.” The burden of proof was on the prosecution, argued Fernando. But in Anwar’s case it was the other way around. “In spite of the monumental task to prove Dato’ Seri Anwar was not there (Tivoli Villa) the defence still managed to do so.” “Yet the judge still insisted the defence did not establish his alibi.” “But the judge did not say which one day over the 90 days the alibi was not established.” “From “So, from “Witnesses were brought to testify and documents submitted to support the alibi.” “The judge’s mind was cluttered. He was very confused and could not see the wood for the trees.” “Tivoli Villa was not occupied. It had no furniture and was under renovation and the prosecution never rebutted this alibi.” “The prosecution said Sukma had free access to the apartment but this was never proven.” Azizan Abu Bakar had testified that he had been sodomised in the Tivoli Villa and that the act had taken place on a bed in a fully-furnished apartment, complete with carpets and all. He further testified that the act had taken place prior to 1993. The defence, in turn, managed
to prove that the apartment was under renovation from “The judge tried to buttress the evidence. He was trying to prop up a case that was so weak and unconvincing.” “He said Azizan’s evidence is as strong as the Rock of Gibraltar.” “Preposterous is too mild a word to use.” “No judge in the history of this nation has gone this far to build up the credibility of a witness such as this – a witness who has no credibility whatsoever.” Fernando explained that if there is any benefit of the doubt, it should have been given to the accused, not the prosecution. Instead, it was the opposite in Dato’ Seri Anwar’s case. “This is a basic fundamental principle of law.” “Azizan should have been impeached. This is not difficult as clearly he lied.” “If Azizan had been impeached, the hearing would have ended then and there as the entire trial hinged on Azizan’s testimony.” DAY 3 – 26 MARCH 2003 “Ummi Hafilda is a prostitute,” said Aziz Samsuddin Day three of Anwar Ibrahim’s appeal hearing at the Kuala Lumpur Appeal Court hit a high note today when Christopher Fernando read out transcripts of the previous trial that quoted Aziz Samsuddin as saying Ummi Hafilda Ali is a prostitute. Fernando started by recapping yesterday’s proceeding where he had told the court Ummi had been disowned by the father after she confessed to writing the letter to the Prime Minister, Dr Mahathir Mohamad, accusing Anwar of sodomising Azizan Abu Bakar, one-time driver of Anwar’s wife, Dr Wan Azizah Wan Ismail. Ummi’s father, a religious teacher, just before he died, wrote an open letter to the Harakah detailing the reasons he had disowned her and, in no uncertain terms, implicated her as the prime mover behind Azizan. “Ummi’s father died broken-hearted without ever forgiving his daughter for the role she played in framing Anwar of sodomy charges,” related Fernando. Fernando had earlier read out Azmin Ali’s (Ummi’s brother) testimony in court that proved she played an active role in the whole conspiracy. The prosecution never called her to testify in court to rebut this allegation, added Fernando. Instead they expected the defence to call her. The judge, in fact, even mentioned this point in his written judgment. “But Ummi would have been a hostile witness so it should have been up to the prosecution and not the defence to call her,” argued Fernando. Fernando said that the court should have invoked Section 114 (g) of the Evidence Act on the prosecution for failing to call a most crucial witness to testify in court. Fernando then took the court through the testimony of Raja Kamaruddin Raja Wahid, a.k.a Raja Komando, who had, in fine detail, revealed how the conspiracy against Anwar originally unfolded and the role he was given in this whole conspiracy. “The evidence of this witness will show he was invited to join the conspiracy with a view to topple the Deputy Prime Minister,” said Fernando. “The meeting was held in the
office of Aziz Samsuddin, the Prime Minister’s
Political Secretary, on In the meeting, revealed Fernando, Aziz confirmed that Ummi and Azizan would pose no problem as “Ummi is a prostitute”. Raja Komando then asked Aziz whether there was any other way to bring Anwar down. According to Raja Komando, “Aziz replied sodomy would be the best way. Other ways would have no affect.” “Raja Komando’s role was to manage the political assassination part of the exercise,” added Fernando. “The sodomy allegation was assigned to Ummi and Azizan.” “Raja Komando was to disseminate the allegation as far and wide as possible. He was also to spread word that Anwar is a CIA agent.” From what Fernando told the court today, it was clearly established in the meeting Raja Komando had with Aziz Samsuddin that he (Aziz) was the Chief Conspirator and that, while Ummi had written the purported “Azizan” letter to the Prime Minister accusing Anwar of sodomy, Aziz was the one who had edited and redrafted it. The letter, Fernando said, was based on the book “50 Reasons Why Anwar Cannot be PM” - which somehow found its way into the attaché bags of almost 2,000 delegates at the Umno General Assembly that year. “The judge did not give this evidence the weight it deserved,” argued Fernando. “He erred, grossly.” “If he had given the evidence the weight it deserved, would he have arrived at the judgment he did?” Special Branch investigation proves Anwar is innocent Earlier, the In the meeting with Azmin, Said Awang solicited his help to persuade his sister, Ummi Hafilda, to retract the sodomy allegation against Anwar. From this testimony, it is apparent that not only was it the Special Branch that approached Anwar and not Anwar who summoned them (and therefore “abused his power”), but that they knew it was Ummi who was behind the allegation, and a false one at that. On the third day of Anwar’s appeal hearing in the Kuala Lumpur Appeal Court, Fernando told the court that Said Awang testified he had written a letter to the Prime Minister on 5 August 1997 confirming that not only was Anwar innocent of the sodomy allegation, but that there was a conspiracy at the highest level to frame him. “Said Awang confirmed that Tun Daim and Rahim Thambi Chik were in the conspiracy,” said Fernando. “He also confirmed that Dato Seri Anwar is not guilty and a victim of a conspiracy.” “Said informed the PM that, from their intelligence gathering, there is no basis for these allegations. In other words, these allegations are baseless.” “Said’s letter also talks about a conspiracy by certain people with their own agenda to get Ummi and Azizan to smear Dato Seri Anwar.” “After a thorough investigation, they came out with the report to the PM.” From this testimony, it shows that as early as 1997 the conspiracy to get Dato Seri Anwar already existed. The Prime Minister even defended Anwar by saying that the allegation is false and was fabricated by certain people who do no want to see Anwar becoming PM. In fact, even the Chief of Police then shared this view and said so. “The PM came out with an even stronger statement that whoever believes these rumours must be stupid and should be shot,” said Fernando. “The conspirators wanted to prevent Anwar from becoming the Prime Minister because he had introduced draconian amendments to the Anti Corruption Act in an attempt to clean up the government.” “And all these conspirators had something to lose if this happened and they were worried.” “In one transaction alone, Tun Daim (illegally) made RM600 million.” “Rahim Thambi Chik had RM39 million in one back account. And that’s only the one we know about. How could he, on his Chief Minister’s salary, have accumulated so much money?” “Rafidah Aziz had four charges of corruption against her. And the Attorney-General, Abdul Gani Patail, had signed the papers recommending prosecution.” However, the trial judge refused to allow all this to be raised in the trial. “Time and time again the judge gave the benefit of the doubt to the prosecution whereas he ought to have given it to the defence,” lamented Fernando. “The judge ignored basic fundamental principles of law. He is in fact guilty of judicial misconduct.” “Whenever there was any testimony in favour of Dato Seri Anwar he would block it.” “This happened to every single witness without exception.” “Irrespective of whether the court is convinced in its own mind of the guilt or innocence of an accused, its decision must be based on the evidence adduced and nothing else.” “Whether the judge agrees that a crime has or has not been committed is irrelevant. The decision must be based solely on the evidence.” In Anwar’ case, however, the judge consistently and flagrantly blocked all favourable evidence and prevented witnesses from being called. Even while the witnesses were testifying and it looked like the testimony was in favour of Anwar, he would stop the witness halfway without allowing him or her to finish. Judge was criminal in his actions Karpal Singh took over from
Christopher Fernando for the afternoon session of the third day
of Anwar Ibrahim’s appeal hearing and kicked off by telling the
Karpal said they had applied to disqualify the judge, Ariffin Jaka, because he is a shareholder of a company which Malaysian Prime Minister Dr Mahathir Mohamad’s son, Mirzan, owned. (The computer-based company,
Dataprep Holdings Sdn Bhd, is known to monopolise all the
government computer business in The basis of Karpal’s argument was that Ariffin is involved in the Prime Minister’s son’s business. Then it was the Prime Minister who appointed him a judge. And the case before him involved a conspiracy that involved the Prime Minister. Clearly there is a serious conflict of interest here. Karpal then told the court that Anwar had been deprived of a proper defence. The date on the charge was
amended from May 1994 to May 1992, then to “one day at However, argued Karpal, they were not allowed to put in a defence they were entitled to. Karpal then explained that, under Section 153 (1) of the Criminal Procedure Code, the charge must contain details of the time, date and place, and sufficient time must be given to the accused to prepare his alibi. The case, therefore, should have been adjourned to allow the defence a minimum ten days for it to file its notice of alibi. “Preparation of strategy is a right of the defence.” “Dato Seri Anwar had a statutory right to demand a postponement to file a notice of alibi.” “The learned judge knew what he as doing.” “That’s what happens to a judge who pre-judges and tries to justify the unjustifiable.” “This is illegal and against the law.” “The evidence cannot be considered and whatever is in the judgment should be expunged.” “When a charge is changed, and the accused needs to answer to this new charge, time must be given to the accused to defend himself.” “The law is very clear. The prosecution must give ten days.” “The pre-trail notice is mandatory and there should be no discretion in the matter.” Karpal added that the 90 days period stated on the charge in which Anwar had to provide his alibi violated section 153 (1) of the Criminal Procedure Code. “It is a horrendous charge,” said Karpal. “I don’t know what I did three days ago.” Anwar had to explain what he did six years before that, over a period of 90 days. And though it was not Anwar’s task to prove where he was but the prosecution’s task to do so, Anwar still managed to provide an alibi that covered all those days. DAY 4 – 31 MARCH 2003 “The prosecution not only wanted their pound of flesh, it also wanted a pint of blood” Karpal Singh continued where
he left off on The “This violated Article 5(1) of the Constitution,” argued Karpal. “Dato Seri Anwar was deprived of his right under the law.” Karpal said the trial judge had acted prejudicial and irredeemable and he ought not to have sanctioned the prosecution of Anwar. Karpal then asked the court to consider setting aside the judgement against Anwar. On the credibility of the prosecution’s star witness, Azizan Abu Bakar, Karpal said Azizan gave five conflicting statements at different points of time. Azizan’s statement was recorded under Section 112 of the Criminal Procedure Code and, under this section of the code, a person whose statement is being recorded: 1. Must answer all questions posed to him. (He/she cannot refuse to answer any question). 2. Must tell the truth. (He/she cannot lie). 3. Anything he/she says can be used against him/her. (Including cited for perjury if he/she lies). Azizan, who had his statement recorded over five different dates from August 1997 until June 1999, however, kept changing his stand. “A witness who constantly changes his stand means he is lying,” argued Karpal. “And yet the judge declared that Azizan’s testimony is ‘as strong as the Rock of Gibraltar’.” “Far from it!” said Karpal. “The duty of the prosecutor is not to obtain a conviction but to administer justice.” “The role of the prosecutor should exclude the notion of winning or losing.” Karpal said that since Azizan made five conflicting statements at different points of time, this “made an improbability of what actually happened.” As for the fact that Anwar was charged in 1999 for an event that was alleged to have happened in 1993, the six years delay would have reduced his opportunity of preparing a proper defence. “Memories fail with time erasing the ability to recollect happenings six years ago,” said Karpal. “A fair trial could not be achieved with such a long time lapse.” “Under section 402A, Dato Seri Anwar’s trial should never have taken place. This is a serious miscarriage of justice.” “Your Lordships are bound to rule that Section 402A has been infringed.” The Bench and Karpal then engaged in a debate as to the notice of alibi which, according to the Bench, is to the benefit of the prosecution. Karpal argued that it did not matter as to whose benefit the notice of alibi may be. It is something mandatory and not something the judge could use his discretion to rule. The defence had made a request for a postponement but the trail judge denied the request. “The judge did not do his duty. He should have stopped the trial and all the evidence should have been ruled inadmissible.” Karpal then related how the defence had applied for a postponement to allow the investigating officer to investigate Anwar’s alibi. The Attorney-General then, Tan Sri Mohtar Abdullah, stood up to say he had no objections to the postponement. “However, after lunch, the AG turned turtle and raised an objection.” Even the judge had declared that the police should investigate the alibi. “Then, later, he turned round and said that it is their choice, that it was their discretion if they choose to do so. “The judge said that it was the prosecution’s own funeral if they do not challenge the defence’s alibi.” Karpal then told the court that the judge had stated that corroboration is necessary. “He then turned around and said he was prepared to accept Azizan’s testimony without corroboration though Azizan was an unreliable testimony who perjured himself many times.” “Corroboration is necessary. But, if a witness is unreliable, then, even if his testimony is corroborated, it still cannot be accepted and should be rejected.” Karpal then took the court
through Azizan’s close proximity (khalwat)
case in the Azizan said he had revealed the alleged sodomy incident because of his “duty and honour as a Muslim.” Karpal said the defence then requested to recall Azizan as a witness to reassess his credibility. The judge, however, would not allow it. “You can put a label of a thoroughbred on a horse,” said Karpal. “But a donkey is still a donkey.” “The judge was not only scraping the bottom of the barrel. He was scraping the outer bottom of the barrel.” The investigation officer had testified that Azizan’s testimony had no contradictions. “Then why amend the date on the charge?” asked Karpal. “Was the judge judicially honest in arriving at the decision that Azizan is a reliable witness who did not perjure himself?” Karpal then said that medical evidence is prime evidence. “Why was Azizan not sent for a medical examination? This could have corroborated Azizan’s testimony.” “The investigation officer admitted that there was still time to send Azizan for a medical examination.” “The judge swallowed the evidence hook line and sinker.” “Allegations of sodomy can easily be made but are very difficult to prove. The evidence therefore must be very convincing.” In any trial, there is the prosecution’s case and the defence’s case. But Dato Seri Anwar was denied his constitutional right to a proper defence. Anwar, therefore, had only half a trial - which means he had no trial. Karpal then asked the court to allow Anwar’s appeal and set aside the conviction. “Anwar’s prosecution, in fact, ought not to have commenced right from the word go. No man properly trained in the law would have done what the AG (then) had done.” “The prosecution not only wanted their pound of flesh. It also wanted a pint of blood.” “Azizan’s evidence has turned to stardust.” DAY 5 – Anwar could have been acquitted if the judge had not violated the law The fifth day of Anwar Ibrahim’s
appeal hearing at the Gobind informed the court he would be raising four main issues; 1. Impeachment proceedings that should have been instituted against the prosecution’s star witness, also the alleged victim of the sodomy act, Azizan Abu Bakar, who perjured himself during the entire course of the trial. 2. The credibility of Azizan on whose testimony the entire case rested. 3. Anwar’s alibi that proved
Anwar’s whereabouts plus proved it was impossible for him to have
been at the scene of the crime, Tivoli Villa, the entire 90 days
between 1 January and 4. The need to prove a Prime Facie case against Anwar which the prosecution had not. Azizan, on many occasions, contradicted himself, not only while giving testimony under oath, but on five different occasions between August 1997 and June 1999 while his statement was being recorded by the police under Section 122 of the Criminal Procedure Act. Because of these contradictions, which the defence argued, “A witness who constantly changes his stand means he is lying,” the trial judge was asked to impeach Azizan and to cite him for perjury. However, the judge ruled he would consider impeachment proceedings only at the end of the case for the Prosecution, then, at the end of it all, the judge declared that Azizan’s testimony was ‘as strong as the Rock of Gibraltar’. In making this ruling, the judge just took some of the inconsistent statements Azizan had made then said that Azizan had satisfactorily explained the inconsistencies. “Under Section 145 of the Evidence Act, the evidence of a witness about to be impeached must be taken as a whole,” argued Gobind. “The trial judge was aware of this requirement. Yet he suggests he had complied with this principle.” On “The judge, however, made this ruling before the end of the Prosecution’s case.” In justifying this, the judge said, “I have considered the testimony of Azizan earlier.” The judge said he found Azizan to be a credible witness and that his credit was safe. But this ruling was made before the close of the Prosecution’s case. “The judge should have deferred judgment until he had heard all the submissions, which should have been at the end of the trial,” argued Gobind. The judge was adamant that Azizan was credible and an honest witness even before he could hear the end of the trial. “He had already pre-decided that Azizan is truthful before he could even hear the end.” “The judge said he did not find any contradictions between what Azizan said in the first trial and what he said in the second trial. Even if there are, said the judge, Azizan has successfully explained these contradictions.” “The judge said, “Azizan is a truthful witness both in fact and substance”.” “The judge made this ruling even before hearing the witness out. The judge should have considered the prosecution’s entire case.” The court was then told that,
on one occasion, Azizan said he was never sodomised between 1992
and 1997. Then he said he was never sodomised between September
1992 and 1997. Then he said he was sodomised between “The prosecution’s entire case against Dato Seri Anwar rested on Azizan’s sole testimony. It is crucial therefore that the credibility of Azizan be established.” “The judge, however, blocked this by not following the proper procedure.” “The judge himself declared that, “This witness is very evasive. He cannot even answer simple questions”.” “The judge knew Azizan was not reliable and said so. Yet he ruled that Azizan was a credible witness and did not want to impeach him for perjury.” “The judge misdirected himself
and the “The contradictions were very clear,” argued Gobind. “Azizan said, from 1992 to 1997 he continued going to Anwar’s house because, after 1992, it never happened anymore.” “Then Azizan said he was sodomised in Anwar’s house, but changed his story and said he was not sodomised in the house but in Tivoli Villa instead.” “Then he testified he ‘did not have any problems’ with Dato Seri Anwar between 1992 and 1997.” “Then, in answer to a general question, Azizan said he was never sodomised at all after 1992.” Yet, the date on Anwar’s charge
said he had sodomised Azizan from 1 January to “The investigation officer was asked the basis of the date on the first charge that Dato Seri Anwar had sodomised Azizan in May 1992. Was it based on Azizan’s testimony in court (in December 1998)?” “The investigation officer replied in the negative and said that it was based on ‘other statements’; two statements Azizan made (earlier) in July and October 1998.” “However, on “Then he said if he was asked ‘specifically’, he would have said the sodomy act still occurred between January and March 1993.” “This is a fundamental departure from proper procedure in impeachment proceedings. The judge precluded himself from considering crucial evidence favourable to the defence. If not, Dato Seri Anwar and Sukma would have been acquitted.” Anwar’s alibi is as strong as the Rock of Gibraltar The Anwar Ibrahim and his Indonesian-born adopted brother, Sukma Darmawan Sasmitaat Madja, were originally charged with sodomising Azizan Abu Bakar sometime in the month of May 1992 in the Tivoli Villa. Anwar then successfully proved his alibi. And his alibi was that the Tivoli Villa was still under construction and was not completed yet in May 1992. Therefore it could not have happened. When the defence filed its Notice of Alibi and the prosecution discovered its mistake, it quickly amended the date on the charge to read one day in ‘May 1994’. The defence protested this most unorthodox move and the trial judge had the gall to say that the defence should have kept quiet. The defence should have allowed the case to go on and let the prosecution complete its case, then, at the end of the trial, the defence should have sprung a surprise on the prosecution and demolish its case. The defence, in all sincerity, had pointed out this major flaw in the charge, but the judge, instead of throwing out the case, allowed this eleventh hour amendment to be made and laughed at the defence for not being devious enough. Only a man with a devious mind who suggest such a devious strategy - and it has now been proven that that ‘devious’ is too mild a word to use on this judge. Then they discovered another ‘small’ problem. Azizan had stated that he was never sodomised after 1992 and that it all happened – if indeed it had happened at all – before May 1992 (later he changed his story to ‘September 1992’). So ‘May 1994’ was also now
out and they had to amend the date on the charge yet again. But
they could not move it back to 1992. So they chose ‘one day at ‘Never sodomised after September
1992’ was no longer a statement that would be possible. ‘If I was
asked specifically, then I would have said it still happened from
And the trial judge allowed it to ensure the prosecution’s case would not be demolished and he refused to impeach Azizan and cite him for perjury, saying that, “Azizan’s testimony is as strong as the Rock of Gibraltar and that Azizan has satisfactorily explained the contradictions. But the original alibi that
the defence raised was only in respect of the ‘May 1992’ charge.
This alibi would no longer be applicable to the new date on the
charge, ‘one day at So the defence asked for a postponement to enable it to file a new Notice of Alibi as required under Section 402A of the Criminal Procedure Code. “The judge knew what he was doing when he denied the request for a postponement to file a new Notice of Alibi under Section 402A,” said Gobind Singh Deo, Anwar’s counsel. “Judges are bound to comply to this mandatory ruling and they have no discretion in the matter.” “This “The Attorney-General (then), Tan Sri Mohtar (Abdullah) said the 90 days alibi the defence raised was a ‘sham defence’. He said this without a clue as to what evidence the defence had and who the witnesses were going to be.” “The AG wanted blood. He acted Mala Fide. He did now know and did not care when he changed the date on the charge ‘from January to March 1993’.” “The judge convicted Anwar and Sukma for an offence that happened between January and March 1993 ‘beyond reasonable doubt’ whereas the alibi proved that the entire 90 days Dato Seri Anwar was never near Tivoli Villa.” “The AG tried to oppress Dato Seri Anwar. He knew Dato Seri Anwar and Sukma were not in Tivoli Villa, yet he purposely fixed these dates to frustrate the defence.” “The AG’s conduct should be condemned.” “It is shocking, shocking, shocking!” “The AG said he had all the evidence of Dato Seri Anwar’s whereabouts both in and out of the country those entire 90 days. The AG said they had kept a diary of Dato Seri Anwar’s whereabouts.” At this point the AG stood up to say that he did not have the diary and had never seen one. Anwar then told the court that the diary in question was the police dairy that logged his detailed movements which the police confiscated and has since disappeared. The court was then told, nevertheless,
the defence managed to account for the entire 90 days between The judge, however, declared
that the defence failed to provide an alibi for one of those 90
days; and that was “Only the judge rejected it to secure a conviction.” Gobind then took the court
through the testimonies of the earlier trial to show that “Even the trial judge said that Friday prayers are only preformed in the mosque and not at home.” Anwar and Sukma, however, were convicted for a sodomy act that occurred ‘one day at 7.45pm between 1 January 1993 and 31 March 1993’ though it was proven beyond any shadow of doubt they were both nowhere near Tivoli Villa and could account for their whereabouts the entire 90 days. And the prosecution never denied or rebutted this. Azizan’s testimony was never corroborated Anwar Ibrahim and his Indonesian-born adopted brother, Sukma Darmawan Sasmitaat Madja, were convicted of a sexual crime, in this case sodomy, purely on the sole testimony of the alleged victim, Azizan Abu Bakar. “In a case of a sexual offence,
corroboration is required,” Gobind Singh Deo, Anwar’s counsel, told
the “A double test needs to be done. The reliability of the witness needs to be established plus his testimony needs to be corroborated.” “If, however, the witness is proven to be unreliable, then it ends there. The testimony of the witness must be rejected and no further corroboration is required.” The court was told, in convicting Anwar and Sukma, no other evidence was offered or medical examination done to support Azizan’s allegation. “The prosecution refused to send Azizan for a medical examination to establish he had indeed been sodomised though it had declared that it was still not too late and there was still time to do so.” Instead, the accused, Sukma, was sent for a medical examination and the doctor testified in court that he did not find any evidence he (Sukma) had been sodomised. (Sukma was earlier jailed six months on allegations he had allowed Anwar to sodomise him). Gobind then told the All this was excluded in the trial judge’s written judgment, said Gobind. Gobind then asked the DAY 6 – 7 APRIL 2003 Prosecution sidesteps the issues; replies without replying The Attorney-General, Abdul Gani Patail, took the floor on the sixth day of the Anwar Ibrahim and Sukma Darmawan Sasmitaat Madja appeal hearing to argue the case for the respondent (prosecution). Today was the first day for the ‘other side’ to reply to the five days of various allegations made by the appellant (defence) against the conduct of the Trial Judge, AG, Prosecutors, police, and many more. The spectators’ gallery was packed with curious members of the public and Reformasi supporters who had lined up more than two hours before ‘opening time’ to ensure they got in. The ‘quota’, as it was, was too small – only ten members of the media, twenty family members, and the rest, a handful, for members of the public. What was foremost in everyone’s mind was how would the prosecution answer to the charges of Mala Fide, conspiracy, trumped-up charges, police torture, blackmail, extortion, fabricated evidence, contradicting testimony, and all that stuff Hollywood movies are made of. The five days of submission
by the defence over the last two weeks was definitely exciting.
Certainly the prosecution would add more excitement to what already
promises to be But, alas, all the great expectations were soon to be shattered. Most found it terribly difficult just to stay awake. If they had paid to get in, they certainly would have demanded their money back, for the performance they saw today, a kindergarten year-end concert would have been more stimulating. As the Malay proverb goes, ‘Indah kabar dari rupa’, which roughly translates as ‘the news is juicier than the actual event’. Yes, that’s what it was; a
major letdown, an anticlimax, a no contest. The prosecution just
cited past events and judicial decisions of other cases in Clearly, the prosecution was trying to win the judges over on technicalities and hoping that the judges will go along with them on the argument that it needs not reply to or deny the allegations but that the allegations need not be considered at all. In short, the judges are being told to ignore all the allegations and rule that the entire defence argument is not relevant. Yes, the very familiar “tak relevan” (not relevant) ruling of the previous trial judge that helped the prosecution out of their tight corner whenever the defence got them pinned down. The prosecution knew it would not be able to argue itself out of this one. So it is telling the court that everything the defence has raised over the first five days should be ruled not relevant and should not be considered. This way, the defence’s entire case can be flushed down the toilet with one twist of the wrist. And we will now go through what the prosecution argued. Inconsistencies do not make the witness a liar The Attorney-General’s main argument on the inconsistency of its star witness, Azizan Abu Bakar, the alleged victim of the sodomy act, is that just because Azizan was inconsistent does not mean he is unreliable or that his testimony lacks credibility. “The main issue in this appeal is the question of Azizan’s credibility,” said the AG. “It is a single most important issue to both the prosecution and the defence in that the prosecution’s case almost entirely rests upon his testimony – thus, credibility.” “It is contended by the appellants that Azizan is not credible for reasons we would advert to later.” “The question is what happens when there are discrepancies or contradictions in a witness’ testimony. Would that make him less than credible and lead to an outright rejection of his entire testimony?” “Discrepancies are bound to happen even by honest and disinterested witnesses and absolute truth is beyond human perception.” The AG then added, “Forgetfulness and failure to recall exactly certain events, which do not seem to be important to the witness, do not necessarily shake his credibility or render other parts of his story unworthy of belief.” “The fact that there are discrepancies in a witness’ testimony does not straight away make him an unreliable witness and make the whole of his testimony unacceptable.” What the AG was saying here is that it agrees that Azizan was inconsistent. But this, in no way, makes him an unreliable witness. It is something normal and quite acceptable. In fact, it is only human to be inconsistent. The AG then said that Azizan’s discrepancy in his testimony is not related to a material point. Therefore, his inconsistencies do not harm the case against Anwar and Sukma in any way. “It is only when a witness’ evidence on material or obvious matters in the case is so irreconcilable, ambivalent, and negational that his whole evidence is to be disregarded.” As to the ‘non-material’ or ‘minor’ inconsistencies that the prosecution is referring to are: 1. Azizan’s admission that he was NOT sodomised by Anwar Ibrahim, then his subsequent change of stance by saying he was. 2. That Azizan contradicted himself when he told the police he was sodomised in May 1994 after first saying it was May 1992, then later changing his story to between January and March 1993. 3. That Azizan said he could not remember whether he told the police he was sodomised in 1992, then later admitted he DID tell the police he was. 4. That the trial judge himself commented Azizan is an evasive witness who refuses to answer even simple questions. The prosecution argued that the above contradictions are not that important to the case even though the judge himself commented that Azizan appears far from credible. In fact, the prosecution explained, “Azizan had clarified the so-called contradictions.” “Should there be any inconsistency or contradiction, it is not material to the extent it goes to the root of the charge or detracts from the main thrust of the prosecution’s evidence.” “The alleged incident occurred about six years ago. Therefore, consistencies are bound to happen. But that certainly does not mean Azizan was lying. Azizan was a truthful witness.” The AG summed up by saying that the parts where Azizan was not consistent were not crucial to the case. Azizan may have contradicted himself as to the date and time, but the place still remains the same. The AG, however, never addressed the fact that Anwar had a solid alibi for the ‘not that important’ time and date, and that he had proven he never was at the place in question. All the AG was concerned about was that Azizan had said it happened in the Tivoli Villa, and he had never wavered in naming this place, so it must be true even if he could not pin down the date and time and the prosecution could not tear Anwar’s alibi to pieces. And the reason Azizan was not consistent was because he was confused due to the so many questions he had to answer and the fact that he was someone of a low education level. Therefore, understandably, he was not someone who should be expected to be consistent. Amendments to the charges were Bona Fide The Attorney-General denied that the amendments to the charges against Anwar Ibrahim and his adopted brother, Sukma Darmawan Sasmitaat Madja, were Mala Fide as alleged by the Defence. The original charge was that
Anwar and Sukma had sodomised Azizan in May 1994. This was the charge
drawn up on Azizan then testified during
the trial that he was sodomised from early 1992 to May 1992. So,
on Then, the defence filed a Notice
of Alibi to prove that, in May 1992, the Tivoli Villa, the place
of the alleged crime, was not ready yet. So, for the second time,
the charge was amended, and this time to ‘one day at To this the AG replied that the first ‘mistake’ was a typographical error. The charge should actually have read ‘May 1992’ instead of ‘May 1994’. Then, when the defence filed their Notice of Alibi, and it was discovered that the Tivoli Villa was not completed yet, the Investigation Officer, SAC1 Musa Hassan, ‘re-interrogated’ Azizan and asked him to “remember correctly the date of the incident.” And that was when Azizan, after ‘correctly remembering’, came out with the ‘correct date’ all on his own, without coerce or coaching from the police. The ‘correct date’ was entirely Azizan’s own initiative, explained the AG, and was not a date suggested by the police. And that was when the charges against Anwar and Sukma were amended and were in no way fabricated or trumped-up charges. In fact, argued the AG, since Azizan kept changing his story so many times and was very inconsistent, this proves he was telling the truth. If there was any attempt to fabricate charges against Anwar and Sukma, then there would not be any inconsistencies at all. In short, because Azizan appears to be lying, then this is every reason to believe he is telling the truth, for a real liar would not change his story so many times. If Azizan’s story had been too perfect and without any flaws, added the AG, then this would be a strong reason to be suspicious. Anyhow, added the AG, dates are important only in specific cases. 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. Azizan, because he was a good Muslim, exposed Anwar’s ‘crime’ Azizan said he had exposed Anwar’s sexual misconduct because he (Azizan) was a good Muslim. Subsequently, during the course of the trial, Azizan got arrested and convicted for close proximity, a crime no ‘good Muslim’ would commit. The Prime Minister, Dr Mahathir Mohamad, in an interview, said the only reason Azizan was arrested was because the opposition was following him in an attempt to catch him doing something wrong. Yes, that was why Azizan was arrested and sentenced to six months jail - because the opposition was trailing him to catch him with his pants down, not because he had committed a crime. The defence then requested that Azizan be recalled as a witness so that his credibility as a ‘good Muslim’ can be reassessed. But the trial judge disallowed it. “Azizan’s moral character has no relevance to the issue,” argued the AG. “Just because Azizan was convicted
for close proximity in a “Azizan’s immoral character
has no significance to the fact in issues in the charges against
both the accused. The conviction in the The IO read medical books to come to his decision On the point raised by the defence that they had asked for Azizan to be sent for a medical examination to determine whether he had indeed been sodomised, but that the prosecution had refused to do so, the AG had this to reply: “The Investigation Officer, SAC1 Musa Hassan, had applied his past experience and relied on medical books when he decided not to send Azizan for a medical examination.” “The trial judge considered this issue in relation to the issue of penetration and he held that medical examination was not the only method to prove penetration.” So the policeman read a medical journal and played doctor while the judge ruled that the testimony of an inconsistent witness was better than a doctor’s expert testimony. DAY 7 – 8 APRIL 2003 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 On “The meeting of “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 On 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 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 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. 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 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
Now, that’s one very sleek
way to screw the one-time Deputy Prime Minister of DAY 8 – Anwar’s trial was illegal on many counts Karpal Singh told the 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 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. DAY 9 – 10 APRIL 2003 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. 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. 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. 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. 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. The Anwar Ibrahim Trials: The implication of Section 402A and why Anwar’s trial was illegal Anwar Ibrahim’s joint-appeal - together with his Indonesian-born adopted brother, Sukma Darmawan Sasmitaat Madja - against his conviction and nine-year jail sentence for allegedly sodomising his wife’s driver, Azizan Abu Bakar, ended after nine days of submissions by both the Defence (Appellant) and Prosecution (Respondent). The Defence and Prosecution
argued for many days the issue of ‘burden of proof’. The trial judge,
Ariffin Jaka,
ruled that Anwar had not CONCLUSIVELY provided an alibi. Therefore,
there are doubts as to whether he was or was not at the alleged
scene of the crime, the Tivoli Villa, between The Defence, however, argues that it is NOT Anwar’s job to provide conclusive proof. All he needs to do is to raise a doubt that he may or may not have been there. And, in the event there are any doubts, then the benefit of the doubt has to be given to the accused, in this case Anwar, and not to the Prosecution. In Anwar’s case though, he DID provide an alibi, so it is more than just raising doubts as to whether he was or was not at the scene of the crime. This, therefore, is HIGHER than just raising a doubt. Simply put, the police must prove Anwar’s guilt, not Anwar who has to prove his innocence – the old saying of ‘innocent until proven guilty’. The burden of proof is on the police. On the issue of non-compliance to Section 402A of the Criminal Procedure Code, this was argued at length by both sides and seems to be the only issue that both the Defence and Prosecution agree to. Section 402A of the Criminal Procedure Code says that the Defence has to file its Notice of Alibi; basically, to prove the accused is not guilty as charged; and this must be done ten days before the start of the trial. Anwar and Sukma were originally charged for sodomising Azizan ‘one day in the month of May 1992’. Anwar then filed his Notice of Alibi to prove that the Tivoli Villa was still under construction and was not completed yet. Therefore it could not have happened there the entire month of May 1992. The Prosecution then amended
the charge to ‘one night between Anwar then applied for a ten-day postponement of the trial to enable him to file a fresh Notice of Alibi to now challenge this new date as well. But the trial judge refused to allow this postponement and ruled that the trial was to proceed without any further delay. Now, the judge has no authority to do this. The Notice of Alibi is compulsory and the judge is not supposed to use his own discretion in whether the postponement should or should not be given. Since this is the law, and the judge did not follow it, the judge therefore broke the law, both the Defence and Prosecution agree to this. Because of this, the Defence wants Anwar’s trial to be ruled unconstitutional and therefore illegal; in short, a mistrial. The Prosecution, though, does not want this. It only wants Anwar’s alibi to be rejected since it violated the law. If Anwar’s alibi is rejected, then he would no longer have any proof he was never at the Tivoli Villa on the dates in question. It is not that Anwar did not have any alibi. It is just that Anwar did not prove it the ‘right way’ – it was not done by filing a Notice of Alibi – therefore it cannot be accepted. The fact that Anwar DID request a ten-day postponement to file his Notice of Alibi and it was the judge who refused to allow it is not an issue. The judge may have broken the law, but Anwar now has to pay the price. The compulsory Notice of Alibi actually favours the Prosecution rather than the Defence. The Defence MUST file a Notice of Alibi ten days BEFORE the start of the trial so that the police can investigate this alibi. If, through the police investigation, it is proven Anwar’s alibi is true, then they can drop the charges against Anwar. In the original charge, Anwar
did file his Notice of Alibi and the police did investigate it –
that is, the Tivoli Villa was not built yet in May 1992. However,
instead of dropping the charges, they amended it to the ‘correct’
date – The second purpose of the Notice of Alibi is to determine who the Defence is going to call as witnesses. Then, from this information, the Prosecution can consider who to call as their own witnesses to rebut the Defence witnesses. This is why the Notice of Alibi favours the Prosecution more than the Defence. The Prosecution can find out beforehand how the Defence is going to defend the accused and take steps to counter this defence. The Notice of Alibi prevents any surprises from the Defence. The Prosecution does not want the Defence to suddenly adduce a piece of paper, a diary, documents, or witnesses that will provide an alibi that it cannot counter. The Prosecution wants to know ten days before the start of the trial what the Defence is going to do so that it can counter the Defence strategy. The Prosecution argued that the Defence should not complain that the trial judge did not allow them the ten-day postponement to file this Notice of Alibi. After all, the Notice of Alibi is to the benefit of the Prosecution, not the Defence. Quite rightly so! But if the Defence had been allowed to file this Notice of Alibi that can prove the accused was never at the scene of the crime on the date in question, this would save everyone the bother of a trial. If the alibi proves the accused could not have committed the crime, then the charges can be dropped (not amended). Then everyone need not be dragged through the months and months of trial just to prove, at the end of it, the accused is innocent. This can be done even before the trial starts. Anyway, the Notice of Alibi is compulsory, so even if everyone is still prepared to go through a lengthy and unnecessary trial that is not the issue. The issue is, this is the law and it should be followed. It is not for the judge to decide based on his own discretion. And, since the judge broke the law, then the trial would become unconstitutional, and therefore illegal. And, an illegal trial would
be a mistrial. So, according to the Defence argument, Anwar should
be acquitted as (19,768 words) RAJA |
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