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

Anwar’s bail application heard: Court reserves judgment

Anwar Ibrahim’s bail application was heard this afternoon and, after more than two hours of deliberations by both sides, the Kuala Lumpur Appeal Court reserved judgment until after the close of the ongoing appeal hearing.

Anwar’s and Sukma’s appeal hearing will continue tomorrow morning and is expected to go on the whole day. Therefore, the court would probably deliver its decision on the bail application at the end of the day.

After lunch, Karpal Singh, one of Anwar’s solicitors, stood up to inform the court that it had before it Anwar’s application for bail. The Attorney-General, Abdul Gani Patail, then told the court that the Appeal Court has no jurisdiction to hear the application. He then cited the particular section of the law to support this argument.

“The first appellant did not apply for bail at the High Court which heard his sodomy case and therefore cannot now come to this court and ask for bail and a stay of execution,” said Gani.

Gani added that the Appal Court has no jurisdiction to grant Anwar bail and that the court could only do so after making a conclusive finding in the appeal. The court would first have to uphold the conviction before Anwar can apply for bail. If, however, the court was to set aside the conviction and acquit Anwar, then there would no longer be a need for bail.

Further to that, Anwar’s Affidavit in support of the bail application stated that he was eligible for bail on 14 April 2003 when he would have served his first sentence. And, today was not yet 14 April, so it was still too early to apply for bail.

To this, Karpal replied it would have been futile to apply for bail in the High Court, which would have been more than two-and-a-half years ago – 8 August 2000; the time Anwar was convicted and sentenced – as he was still serving his first sentence then.

(Even if bail had been granted then, Anwar would still not have been able to go home until he completes his first sentence. And the bail application is not for the first conviction but for the second conviction, the sentence which commences AFTER he completes the first one. Therefore, logically, bail should be applied towards the end of the first sentence).

Karpal then argued that bail was always allowed pending the outcome of the appeal, except for exceptional circumstances, and there was nothing to stop the court from granting Anwar bail.

Karpal added that the Prosecution’s earlier argument that Anwar would interfere with police investigations and tamper with witnesses if allowed out on bail was no longer applicable as Anwar’s case was now at the appeal stage.

“The court should dispense justice and Anwar should not be allowed to suffer any longer as he had already spent more than four years in prison,” said Karpal.

The AG then argued at length that the reason given in Anwar’s bail application, which was that he required to go to Germany for spinal surgery, could be challenged since surgery is available in Malaysia. The AG then read out various doctors’ reports confirming that Anwar was fit and that his health had greatly improved so surgery was, in fact, not really required.

Karpal’s reply to this was that bail should not be denied just because Anwar’s health had improved as alleged by the AG. After all, bail was not just for sick people but even healthy people could be granted bail.

The AG then brought up various technicalities to shoot down the bail application. Other than being the wrong court to apply for bail, Anwar had also used the wrong section of the law in his application.

Karpal then reminded the court that justice, rather than technicalities, should be the consideration. Even people charged for murder, which, in Malaysia, is a non-bailable offence, had been granted bail.

Karpal also told the court that everyone should be equal in the eyes of the law and there should be no double standards applied. Anwar Ibrahim’s Indonesian-born adopted brother, Sukma Darmawan Sasmitaat Madja, was out on bail. Why should Anwar then not also be granted bail? (They were jointly tried, convicted and sentenced).

To deny Anwar bail would be an infringement of his constitutional right to be treated equally before the law, said Karpal. “The Federal Constitution states that all citizens must be equal before the law. In this case one accused is allowed bail but yet the other is not.”

“Doesn’t that just infringe Anwar’s constitutional right?”

Christopher Fernando, Anwar’s lead counsel, reiterated that the reasons cited for denying Anwar bail in the first conviction no longer apply to the second conviction, which is under appeal. For example, the previous bail application was turned down on grounds that Anwar may fabricate evidence, tamper with the witnesses, and so on, which no longer apply in the ongoing Appeal Hearing since there are no witnesses involved (and, in an appeal hearing, no new evidence will be adduced other than what was already adduced in the earlier trial).

The judges, on more than one occasion, were seen whispering amongst themselves, clearly giving the impression they were facing a great dilemma. The rumours circulating the nation’s capital is that ‘instructions from the top’ have stipulated that Anwar, under no circumstances, should be allowed bail. The judges, however, seemed to be quite uneasy in that there is really no valid reason to deny Anwar bail, especially since Anwar’s so-called ‘partner-in-crime’, Sukma, is free on bail.

Karpal then stood up to tell the court they could, as a compromise, even give a ‘conditional bail’ if they so wished. For example, the court could stipulate that Anwar could be granted bail but will not be allowed to leave the country for his spinal surgery.

Anwar, at one point, seemed quite irritated that the more than two hours of arguments were leading nowhere. The judges were constantly whispering amongst themselves as if quite lost as to what to do, while the AG kept telling the judges over and over again they did not have the authority to hear the bail application, and that Anwar had applied for bail at the wrong time, in the wrong court, and under the wrong section of the law.

Towards the end, Anwar gestured to one of his lawyers, Zulkifli Nordin, who, after conferring with Anwar, walked over to Fernando and whispered in his ear. Anwar was clearly fed up with the whole thing and was quite prepared to abandon the entire exercise.

Zulkifli, later, almost crossed swords with one of the Prosecutors and Anwar had to restrain him from doing to the hapless Prosecutor exactly what almost everyone in court would have loved to do themselves. In fact, it was with great difficulty those in the spectators’ gallery refrained from jumping over the wooden fence to show the AG exactly what they thought of him.

Finally, the judges adjourned for the day while everyone, still breathing fire, brought their blood pressure down by shouting “Reformasi!” outside the courtroom, much to the exasperation of the police.

Clearly, if today had been two hundred years ago, the era when the law of the jungle reigned supreme, it would have ended up an entirely different day. Thank God Malaysia now practices the rule of law…but then, do we really?