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FAC News - Friday, April 11, 2003 9:47 AM The Anwar Ibrahim Trials: The implication of Section 402A 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 yesterday after nine days of submissions by both the Defence (Appellant) and Prosecution (Respondent). FAC News has covered the entire proceedings of the hearing at length – as it did the previous appeal hearing against Anwar’s conviction and six-year jail sentence for corruption. Feedback received from readers though is that it is quite difficult to comprehend the many arguments both sides have put forward and that what transpired at the hearing should be explained in layman’s terms without all the technical terminology and legal jargon. You must understand; law has intentionally been made to appear complicating because the more complicating it appears the higher the legal fees go. Actually it’s quite simple really. For example, 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, how many times have we seen on TV the smug gangster look the police in the eye and challenge them to “prove it”? And, since the police were not able to prove it, the gangster just stands up and walks out off the police station. Yes, the police must prove the gangster’s guilt, not the gangster who has to prove his innocence – the old saying of ‘innocent until proven guilty’. The burden of proof is on the police. Let us take you through one of the issues in the hearing; 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
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