Anwar’s Appeal Rejected: Any Chance of a Fair Trial?
July 2, 2009
Anwar Ibrahim’s Appeal rejected
Hafiz Yatim@www.malaysiakini.com
Opposition leader Anwar Ibrahim suffered a setback when the Court of Appeal dismissed his appeal for his sodomy trial to be heard at the Sessions Court instead of the High Court. This was likely to be his final bid to have his sodomy trial held in the lower court, ending a long wrangle over where the case should be heard.
Amid widespread doubts over the standards of Malaysia’s judiciary, Anwar’s supporters have said they fear authorities will be able to manipulate the case more easily in the High Court as compared to the lower court.
His trial is scheduled to start on July 8, but tomorrow has been fixed for the opposition leader’s application to get all the documents relevant to his sodomy case from the prosecution.
However, what was important in today’s decision was the court deeming the prime minister having no authority in giving public assurances that the Attorney-General (AG) would not be involved in the case or any other cases.
“In our view, the PM is not the competent authority on matters concerning criminal prosecutions in our country,” said Justice Abdull Hamid Embong, who led the three-member bench.
He added that this authority under Articles 145 (3) of the Federal Constitution is vested solely in the public prosecutor (AG).
“All prosecutions are in his name as the representative of the state and public interest. No member of the executive, not even the PM can interfere or fetter this independent powers of the AG in respect of prosecutions.”
AG under PM only administratively
Besides justice Abdull Hamid, the two other judges on the bench were justices Abu Samah Nordin and Jeffery Tan Kok Wha. Abdull Hamid said the AG, whose double role as the public prosecutor may be administratively answerable to the PM, it was certainly not the case in the area of prosecution.
He said the assurance and undertaking given by the solicitor-general in his affidavit over the non-appearance of the AG in the court proceedings is reflective enough of the former PM’s intention.
“In our view, the assurance given by the former PM should be taken only in the context that the AG should not longer be seen to appear in court proceedings relating to the prosecution of the charge against the appellant.
“It could not be stretched to mean that the former PM intended to bar the AG from exercising his formal statutory functions, such as putting down his signature on the certificate of transfer. It must be remembered that this power under section 418 can only be exercised by the AG.”
As such, Abdull Hamid said it is the court’s finding that the assurance given to Anwar could not be said to have given him any legitimate and reasonable expectation for a complete non-involvement of the AG in the prosecution’s case.
Signing does not prove bias
On the bias issue, the judge said the AG’s decision to sign the certificate of transfer from Sessions Court to High Court cannot be deemed or imputed to be biased or that there was conflict of interest.
“Allow us also to make the observation that there is absolutely no evidence, not even any misgiving that Anwar would not get a fair trial at the High Court.
“Considering all factors we feel that it would be better that the High Court deals with this charge against him. “The assurance given by the former PM that the AG would not take any part in his prosecution was essentially a firm statement that he will get a fair and open trial,” he said.
The fact, Abdull Hamid said, that the AG had undertaken to have it transferred to the High Court, would in no way deprive him of his “opportunity to a fair trial”.
“The choice of the trial’s forum is inconsequential,” he said.
Sessions Judge erred
The judge also commented on the Sessions judge decision in deeming the transfer certificate signed by the AG as wrong. “Unfortunately, she paid mere lip service to it and went on to conclude it as invalid.” He also agreed that the Sessions Court judge had acted beyond her jurisdiction and powers in hearing Anwar’s objection after the transfer certificate was issued.
“If the Sessions Court ruling takes the form of a declaration, in that it declared the AG in this instance had no right to issue this certificate (left), we still hold that such a declaration would be outside the scope of its powers,” he said.
In matters of revision, or seeking declaratory orders, the powers lie at the High Court and not the Sessions Court.
For the above reasons, the appellate court rejected Anwar’s appeal to have his sodomy case heard at the Sessions Court and upheld the High Court’s decision on March 5 for the hearing to be heard there.
Anwar disgusted with decision
Anwar @Parliament
The opposition leader, in an immediate reaction to the decision, said he was “disgusted” with the ruling, especially the court’s mockery of the assurances made by the former prime minister. “This is why people will question the judiciary. This is why we have the VK Lingam tape scandal on allegations that the judiciary is not acting correctly,” he said.
Following the decision today, Anwar said he would be naïve to think that there will be a fair trial accorded to him. “How can I be confident of the trial with such background of injustice spanning for more than 11 years,” he said.
The opposition leader said he would consult his lawyers on whether to file a review over the appellate court’s decision. “The decision is not appealable. I am most disappointed with the decision today,” lawyer Sankara Nair told AFP.
According to the law, Anwar cannot appeal to the Federal Court as this case originated from the Sessions Court. However, he has the option of filing a review of today’s decision again at the Court of Appeal.
Meanwhile, Sankara also told reporters that the prosecution has issued a letter last week stating that it would not provide all the documents on the case to the defence.
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To the Kangaroo court goes the Sodomy 2 trial. The decision was not unexpected since the Executive Branch via the Attorney General is too overpowering. We all keep hoping against hope that our judges have the courage of their conviction to see the merits of Anwar Ibrahim’s appeal.
The Judiciary has been emasculated and cannot now be expected to give Anwar Ibrahim a fair trial despite assurances by Justice Abdull Hamid Embong, who led the three-member bench that “the choice of the trial’s forum is inconsequential”.
If the forum is ” inconsequential”, why should Anwar Ibrahim spend money and time making the appeal in the first place. To me, it means that the forum is vital, not to the learned judge and his colleagues. The government in power has made up its mind that Anwar should return to gaol. The courts are there to see that it is done. Najib is worried about the competition and will do whatever it would take to ensure that the former Deputy Prime Minister should be guest of our King. What do you guys think?
What else can we expect from Najib’s One Malaysia when all his actions since taking over from the inept Tun Badawi are divisive and repressive. Even his new economic model won’t work when the Rule of Law and justice system can be manipulated to achieve political ends, when corruption and abuse of power are rampant,when the education system breeds comformity and mediocrity, and when there is crony capitalism and patronage of our feudal past. —Din Merican
dinobeano - July 3, 2009 at 8:41 am
I agree with Mr. Din Merican. In a truly functioning democracy, the value of justice cannot be understated. Hence the rule of law is vital. The attempt to put on Anwar Ibrahim back in gaol will make Malaysia a pariah state in the eyes of the international community. Why is your government so blur not to understand this. Tamper with the justice system at your own peril. Absent the rule of rule, mob rule will take over.
When a government becomes increasingly scared of dissent and its legitmacy is being challenged by citizenry, its demise is not long in the making. We are about to see the umaking of your country. This whole sodomy 2 affair us not about Mr. Anwar Ben Ibrahim, it is about a justice system that can no longer administer justice.
The constitution, which is the mother of all laws, si not worth the paper upon which it is written. It is founded the proposition that man shall be free to pursue his self interest without trampling upon the rights of other citizens. When the rights of man are denied, tyranny prevails.
emre the turk - July 3, 2009 at 11:12 am
The poor judges sitting on the bench have been cowed. They fear not God but the loss of their periok nasi. What more can we the rakyat do except to pray for deliverance. If only it comes.
Tok Cik - July 3, 2009 at 12:08 pm
What facts Anwar has to prove his innocence?
Nothing…. play victim and accuse the courts as unfair without any fact?
All the documents/evidence requested from the prosecution is in his hands.
The tone of his statement shows he has nothing to prove his innocence.
And he has no way to prove the evidence was fabricated.
To prove that certain allegation is a conspiracy, one must produce factual evidence of rebuttal to verify the whole thing was a conspiracy.
For both cases, sodomy 1 and 2, Anwar produced none!
Cakap dan menuduh saja tak cukup!
Kamu sebagai lawyer tak kan tak tau. Facts – where are they?
mickey - July 3, 2009 at 12:33 pm
Mr. Mickey, what is your hang-up?
If the evidence is not there (or it is fabricated) to put you on trial at great cost to taxpayers and then shipped to some gaol, you would be concerned with the reality of having to be in court presided by Judges who have already had their minds made up by politicians in power. People like you don’t realise what is at stake, and I can only more Malaysian people will stand up for justice.
emre the turk - July 3, 2009 at 2:48 pm
“What facts Anwar has to prove his innocence” Mickey
First, the accused is not required to prove his innocence.
Second, the prosecutor who alleges sodomy will have to prove his case i.e. the fact that the ‘victim’ was sodomized and was sodomized by the accused.
“And he has no way to prove the evidence was fabricated”.
The accused does not have to prove fabrication. All he has to do is cast doubts on the allegations made against him.
“To prove that certain allegation is a conspiracy …”
The accused does not have to prove conspiracy. All the accused need to show in this case, is there was no sodomy and if there is evidence of sodomy he did not cause it.
Assuming that there is evidence of the ‘victim’ being sodomized, since consent is not a defense in this case, the prosecutor would have to prove the accused did it. Short of eye witness testimony, a recording of the act, what evidence is there to prove the prosecution’s case? Remember the legal burden is on the prosecutor. The accused does not have to prove anything. What the prosecution alleges, the prosecution must prove. There is the testimony given by the ‘victim’ but that would not be enough. A bare assertion is never enough. It requires collaboration through independent evidence.
DNA evidence?
If there was DNA evidence, was that of the accused? Where? How did it get there? All the accused need to do in all these cases is cast enough doubts.
But with the judge being both the tribunal of law and facts, anything is possible.
Mr Bean - July 3, 2009 at 4:16 pm
What other evidence is there? Expert witness and medical reports. Let’s hear what they have to say.
The swearing in the mosque by the ‘victim’? Not admissible in evidence if it is to prove the truth of its contents – hearsay. Not relevant.
What other evidence? Menyalak-er overheard a conversation? He heard someone say to someone else that the accuser was forced into making the allegation – and that it was not the accused? Neither is available to give testimony and their identities remain unknown. Get Menyalak-er to testify and repeat what he heard? Not admissible. Hearsay.
Mr Bean - July 3, 2009 at 4:35 pm
hu hu postponed again, this time all lawyers are sick…very pity. clearly anwar wants to delay this case. Let’s see, what accuses and tricks he will do then.
perakman - July 3, 2009 at 4:40 pm
If evidence is being introduced in court for the first time because it was not available before to the prosecution, the judge has discretion in how to handle it. Reason or reasons will have to be given for the ‘new evidence’. He can exclude it if he thinks it is deliberate. It could be in the form of a ’surprise’ witness or some other evidence.
The judge will have to adjourn the case to allow time for the other party to study it.
Whatever he does has to be ‘in the interest of justice’. Abuse of his discretion will add to the grounds for appeal. The appearance of bias is enough.
Mr Bean - July 3, 2009 at 8:26 pm
What does the country’s Criminal Procedure Act say??
Mr Bean - July 3, 2009 at 8:35 pm
ooops Code
Mr Bean - July 3, 2009 at 8:35 pm
No apologies needed Bean, it is Procedure and Process as in an Industrial sense. Due process in a legal sense?
Btw, how did you know that i overheard someone else ‘overhear’ the shenanigans?
Hmm.., i did hear that, the ‘victim’ moaned rather pathetically when the GH specialists shafted a rather large stainless steel proctoscope (used for anorectal exams) to ensure that there were no untoward tears and lesions, while trying desperately to scrape remnants of some foreign DNA. It was later anal-yzed that it came from a ‘Mata Kambing’.
Cheers.
Menyalak-er - July 3, 2009 at 9:18 pm
Did he moan in pain or in ecstasy? I suspect it is the latter – or both. No pleasure without pain, says the monkey.
Sorry. What’s a ‘mata kambing’??
Mr Bean - July 3, 2009 at 10:14 pm
Bean… Bean, surely we can’t discuss that in Din’s blog! Hahaha. Too many youngsters around – better to ask ‘mickey’ who i’m sure will give us an update to that ‘archaic’ question.
Menyalak-er - July 3, 2009 at 10:49 pm
“Anwar has been trumpeting two hospital reports on his accuser, which he claims have put him in the clear.The recently released government-run Hospital Kuala Lumpur report apparently shows there are no signs that the then 23-year-old Mohd Saiful Bukhari Azlan was sodomised, noting no injuries to his private parts. Both applications are now fixed to be heard …” Malaysian Insider
I don’t follow. Such issues could be disposed off during the trial proper.
The hospital records are not evidence if the purpose is to prove the truth of contents; the testimony of the examining doctor is. It can be used in memory refreshing. If there is a conflict between two medical findings, and only one witness (the one favorable to the prosecution’s case) available to testify and be cross-examined for its truth and accuracy, then the prosecutor who alleges has proven his allegation that the ‘victim’ has been sodomized. “Who by” would then be the question left unanswered since consent is not relevant.
He could have been sodomized through the use of a foreign object after the fact. If the defense alleges that, they would have to prove it. The absence of DNA material on the ‘victim’ at the material time be it on his person, his clothes etc, belonging to the accused would be one way.
Is there a ‘blue dress’ somewhere?
Mr Bean - July 3, 2009 at 10:56 pm
“Bean… Bean, surely we can’t discuss that in Din’s blog! Hahaha. Too many youngsters around – better to ask ‘mickey’ who i’m sure will give us an update to that ‘archaic’ question.” Menyalak-er
Sorry if I sound naive. In my youth spent mostly in Aloq Setaq, my parents and everybody around me was very protective. My strict father once caught a man exposing himself to me behind some bushes. To me, goat’s eyes mean just that. What would goats eyes be doing outside a goat’s head?
Mr Bean - July 3, 2009 at 11:11 pm
I’m with Anwar thick or thin and i don’t care if he really is a homo as much as Razak Baginda’s wife cares the woman who gave her hubby a blowjob was blown to bits!
I may’ve 2nd thoughts of our criminal justice system only if Linggam is brought to book and if the prosecution appeals the High Court’s decision to let Baginda walk
…fat chance eh!
As for now , i’ve no option but to be bias in my judgement no matter how revealing the evidence maybe. The govt is compelling me to behave in such manner.
Danildaud - July 3, 2009 at 11:18 pm
the perak fiasco and the conseqeunt apex court judges judgements
will be a ready answer.
try making a report against chua soi lek and get a conviction from the same kangaroo court. pipe dreams, din.
aca - July 3, 2009 at 11:51 pm
Let us not cast stones at other people, not that i care very much about that CSL, except that he’s not photogenic. Selective prosecution or rather persecution has always been the way of megalomaniacs.
As for that blue dress/towel/mata kambing etc, Bean, it’s difficult to to make it the object of their ‘desire’ – remember our present igp carrying mattress up and down the courthouse? Causing such hilarity and black comedy – that the case was quickly upended on ‘technical’ grounds!?
Menyalak-er - July 4, 2009 at 12:18 am
Bro. Din and fellow bloggers,
Terlalau banyak sudah diperkatakan tentang perkara ini dan ianya tidak akan membawa faedah apa2.
Kita kena terima kenyataan disini bahawa Najib and the goons will crucify Anwar for good this time around. Mereka akan menggunakan apa cara sekali pun even if they have to sell their mothers.
Yang ada pada mereka adalah sifat2 binatang dan iblis yang menguasai diri mereka.
ariffdanial - July 4, 2009 at 1:25 am
What surprises me is that Najib did not drop the charges when he assumed office. It wouldn’t have stopped the slide but he would have regained some credibility for himself. It is a lot worse than when I first thought.
You are as guilty as the evidence suggests. What has he got that we do not know??
Mr Bean - July 4, 2009 at 1:47 am
Given the present scenario in Malaysia and looking at the way justice is administered in Malaysia we should ask Ladbrokes the odds of Anwar winning the case. I place my bet on Anwar losing with a spread of 99 to 1.
shrek - July 4, 2009 at 2:09 am
Oh yeah?? Nothing like lying spreadeagled on the ground. Are you ready to spread your cheeks Shrek??
Mr Bean - July 4, 2009 at 3:02 am
Sometimes I wonder if all sex offenders / rapist use the same the same line of defense like anwar. What chance do all the victims have for justice?
Syabas Anwar for providing new avenues for criminals, by casting doubts, making delays etc etc.
Now that he has access to all the evidence (maybe that explains why the lead lawyer is having a big headache ) should be easy to point loose ends.
But nothing has been said about it other than accusing the courts of unfair trial.
Time is really running out for Anwar.
Some will keep on believing in Anwar, no matter what.
It does not matter how many lies he tells you.
Truth will prevail as more things has begun to unfold.
Recent failed assembly (less than 5% turn up) in Mppj stadium is a clear indication that people are no longer believing in him.
It’s the same rethoric, old antics of blaming.
Nothing new has come out of Anwar.
It’s a tough time for Anwar and PR too.
Even tougher for Anwar’s big team of lawyers.
If the whole thing was fabricated, I’m sure it will be easy to find a hole.
Human make mistakes, except for one called Anwar.
Mickey - July 4, 2009 at 3:25 am
“Syabas Anwar for providing new avenues for criminals, by casting doubts, making delays etc etc.” Mickey
That is his constitutional right to free speech.
Delays are sometime inevitable. Adjournments are necessary. The accused cannot be denied his constitutional rights. The rules of procedure apply with equal veracity to both parties. These are spelt out in the CPC.
Lawyers from both sides work to lay bare the evidence and it is up to the court to decide based on the totality of the evidence presented. It is not based on hunches or personal beliefs but based on the evidence presented to the court according to the law of evidence.. Not all evidence is admissible. Some are relevant, accurate and true but are excluded because of the common law rule against hearsay.
You are presumed innocent until proven guilty. The legal burden lies with the prosecutor to prove on the totality of the evidence that the accused is guilty beyond reasonable doubt. All the defendant needs to do is raise reasonable doubt – and not dispel all doubts regarding his guilt. This is because he is innocent until proven guilty. The verdict at the end is never “guilty” or “innocent” but “guilty” or “not guilty”. A guilty party sometimes walks free. It is preferable that a guilty party sometimes walks free than an innocent party goes to the gallows for a crime he or she never committed. Our justice system is not perfect. Nobody says it is.
What’s your beef with a person accused of a crime?
You could be that accused one day. When that happens you’ll be screaming for your rights under the law. Rights of due process must be given to the accused who has only been accused of a crime and has yet to be found guilty of anything. Ours is an adversarial system.
Mr Bean - July 4, 2009 at 6:42 am
mickey,
guess you were still sucking your thumbs iand wetting your pants n 1998. well, its irrelevant.
just as the judge who proclaimed he will anwser to God (if he understand this 3 letter word), i hope you find one too.
aca - July 4, 2009 at 12:33 pm
Bean
Who’s the quarter back, tight end and wide receiver? hut hut hut
Goal – 6 points, turnover how many points?
shrek - July 5, 2009 at 12:01 am
Dunno. How tight is your end, Shrek??
Mr Bean - July 5, 2009 at 6:03 pm