The Judiciary hasn’t really changed: THE CASE OF ROSLI DAHLAN

January 20, 2012

by Din Merican

When Anwar Ibrahim was acquitted of Sodomy II on January 9, there was stunned reaction nationwide. Numerous interpretations came about, not least that this was the Politics of the Prosecution (or “Persecution” to be more apt).

Senior Lawyer Tommy Thomas wrote a most eloquent piece titled “Why was Anwar Ibrahim acquitted?” (see Tommy’ article below) and suggested that Sodomy II was all about politics, and nothing but politics. That this was gutter politics of a new meaning where no political leaders across the globe had been the victims of such dirty state politics as Anwar.

Thus, the decision to acquit Anwar was about the Politics of Acquittal, that the trial judge did not actually make the decision himself, but it was in reality a political decision. That is the perception of most Malaysians (including lawyers) that in “political” cases the Courts are not independent of the Executive.

Tommy Thomas (left) suggested that one way to analyze judicial independence is by reviewing the trial judge’s overall conduct and he concluded that the judge’s acquittal was a U-turn of massive proportions which contradicted all his prior rulings against Anwar during the trial.

Malaysians shouldn’t be euphoric in heralding the dawn of a new era in judicial independence and that “Anwar’s acquittal will not be the harbinger of better things to come from the Judiciary. One swallow does not make a summer!”

I prefer the word “Spring”, since it reminds me of what had happened in Tunisia, Egypt, Libya, Bahrain, Yemen and Syria where Arab streeters challenged the corrupt and repressive leaders in their homelands. Ben Ali, Hosni Mubarak and Muammar Gaddafi–he has gone to meet His Creator– are now  longer in power.

I am not for one moment  suggesting that this can happen in Malaysia. But let us err on the side of caution. We must never take our citizens for granted because if they are pushed into a corner, Malaysians will stand up and fight for justice and freedom.

The Case of Rosli Dahlan: Gross Injustice and Victimization of a Professional

That was indeed just one swallow if we are to judge the Judiciary by the case of my dear young friend Lawyer Rosli Dahlan. Readers would remember that the MACC brutalised Rosli for defending Dato Ramli Yusuff, the former CCID Director, who was fixed by the Unholy Trinity- former IGP Musa Hassan, the MACC and A-G Gani Patail.

Dato Ramli Yusuff and Rosli Dahlan had exposed Musa Hassan’s links to an Ah Long syndicate and also the Malaysian Airline Systems (MAS) scandal involving its former chairman Tan Sri Tajuddin Ramli. Both Ramli and Rosli were fixed so that these matters can be canned.

Recently, the MAS scandal resurfaced when Minister in the PM’s Dept, Dato Seri Nazri Aziz, directed several GLCs including MAS to sack their lawyers and appoint the UMNO lawyer Datuk Hafarizam Harun (see the BN and UMNO logos proudly displayed on this firm’s website  here so that the cases against Tajuddin can be closed.

MAS Issue unresolved–Why?

Speculation is rife that Tajuddin Ramli is protected because he has damaging information about UMNO leaders involved in the plundering of our national air carrier.  MAS was at the brink of bankruptcy if not for the WAU (Widespread Asset Unbundling) scheme that allowed MAS to soar again. And the MAS-Air Asia deal is now viewed with grave suspicion as a repeat of all past misconduct, which was why Rosli and Dato Ramli got into trouble  in the first place.

In order to fix Rosli, the  MACC served on him an invalid notice to declare his assets whereas he had never been a civil servant and was just a private sector lawyer. Although Rosli replied to that notice and declared his assets under protest, still the MACC brutally arrested him and charged him in a most humiliating and sensational way just one day before Aidil Fitri of 2007.

Rosli then filed an application in the Civil High Court for a Judicial Review to declare that what the MACC did was wrong. The A-G Chambers took a technical argument that the invalidity of the notice cannot be raised by Judicial Review but should be raised during the trial in the criminal court.

On the other hand, during both Rosli’s and Ramli’s criminal trials, the A-G Chambers argued that the invalid notice cannot be challenged in the criminal case but should be challenged by Judicial Review in the civil courts. Clearly, A-G Gani Patail is being dishonest by blowing hot and cold.

Eventually, Sessions Court Judges M. Gunalen and Abu Bakar Katar held that the notices against Dato Ramli and Rosli Dahlan were invalid and unlawful which means the MACC fixed them up! It is amazing that A-G Gani Patail has filed appeals against the acquittals of Dato’ Ramli and Rosli whereas there is total reluctance to prosecute Tajuddin Ramli in the MAS scandal, Shahrizat Jalil in the NFC scandal, and Awang Adek for openly admitting that he received money and gratification in his personal account. And we hear of former Tourism Minister and incumbent MP Azalina Othman Said who recently admitted to accepting a bribe.

This is just to show how screwed up our judicial system is. When he filed an appeal against Rosli’s acquittal, A-G Gani Patail was out of time. Usually the Courts are very strict about time observances, yet on  January 12, High Court Judge Dato’ Su Geok Yam allowed the A-G to appeal against Rosli out of time (read the A-G’s report in this link: Permohonan PP memfailkan Petisyen Rayuan diluar masa dibenarkan dalam  kes Petisyen Rayuan PP v Rosli Dahlan

And then yesterday, from my friends in the Palace of Justice, I heard that Rosli’s appeal for leave to file the Judicial Review came up in the Court of Appeal yesterday January 19 before Justices KN Segara, Clement Skinner and Anantham Kasinather. To save A-G Gani Patail (right) from embarrassment for his inconsistent stand, these Court of Appeal Judges said that Rosli’s appeal was academic as he was already acquitted by the Sessions Court and forced the appeal to be withdrawn.

Hearing all these from my friends in the Palace of Justice make me very sad. Tommy Thomas was right that nothing has really changed, that it is too early to expect better things from the Judiciary. The bully and under hand tactics used against Rosli is revolting to me. The fight for justice must continue since our Courts remain subservient to the political masters.

I asked Rosli for tea with some friends to see if he was fine. Unlike previously, this time Rosli did not try to avoid me. He seemed calm and collected when I tried to console him. There was a tinge of sadness in his eyes which he tried to hide by his charming dimpled smile.

Despite all my goading, he refused to talk about his case. When I asked what he planned to do next, he laughed and jestingly quoted Anwar’s war cry – “Lawan Tetap Lawan!”

That was enough for me to know that Rosli has the resolve to continue fighting on for the justice that was robbed off him.

I agree with Tommy Thomas that Anwar’s acquittal provides the best opportunity for the electorate to have a clear choice as to which coalition should be given the privilege of governing Malaysia for the next five years.  A true two-party system must occur this time.

If we are to have true change and justice for all, then there must be yet another political tsunami that will change the landscape like the Malay proverb “Sekali air bah, sekali pantai berubah!”

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Why was Anwar Ibrahim acquitted? — Tommy Thomas

January 19, 2012

The stunned disbelief of most Malaysians when Anwar Ibrahim was acquitted on January 9, 2012 is the best proof of public perception that he had hitherto not received a fair trial, with a guilty verdict a foregone conclusion. A similar perception was felt by a vast majority of the 13,000 lawyers in the Malaysian Bar.

Politics of the Prosecution

For 3½ years since Mohd Saiful Bukhairy Azlan’s story emerged, the government has insulted the intelligence of Malaysians by declaring that Anwar’s prosecution was not influenced by politics. On the contrary, the case is all about politics, and nothing but politics.

If Anwar was not an electoral threat to UMNO, he would not have been prosecuted. It is as simple, plain and obvious as that. If there are any who still doubt this critical statement of fact, take note that between 1998 and 2008 the media did not report any prosecution of consenting adults engaged in same sex activities. Does it mean that in that period no homosexual or lesbian activities took place in the country?

So why has there been so much governmental hostility against Anwar? Because he has been perceived by UMNO as their greatest political adversary, and the only person who could be a potential prime minister. It ought to be recalled when Anwar was a popular deputy prime minister and minister of finance in the mid-1990’s, he generated the politics of envy in UMNO. By 1997-8, then-prime minister, Dr Mahathir, was convinced that Anwar was a threat to his Presidency of UMNO (and thereby the Prime Ministership).

The September 1998 sacking of Anwar as Deputy Prime Minister, expulsion from UMNO, brief detention under the ISA and prosecution for sodomy were actions taken by Dr Mahathir to eliminate a very serious contender to his office.

A decade later, Anwar’s singular contributions in leading Pakatan Rakyat to the best performance by an opposition party since Merdeka in the March 2008 general election raised UMNO’s fears again. It was compounded by Anwar’s imprudent announcement in April 2008 that he would lead a Pakatan Government by September 16, 2008 (the 45th anniversary of the formation of Malaysia).

I suggest the decision to destroy Anwar politically a second time and to subject him to a second humiliating sodomy prosecution was taken by the powers that be in the wake of the March 2008 elections results.

The plot was hatched, and the agencies of the government went into action. In any modern society when the police and the prosecution authority conspire to destroy an individual, the whole force of the state is marshaled against the hapless victim. Unless there are strong countervailing independent organisations in that society, the individual is doomed.

Along with many others, I wrote in July 2008 that Anwar should not be prosecuted (see my article entitled “A second prosecution of Anwar Ibrahim — is it in the national interest?”) Such pleas fell on deaf ears. The prosecution, initiated in August 2008 during Abdullah Badawi’s administration, continued with great vigour under Prime Minister Najib Razak. The government controlled television, radio, and newspapers sensationalised coverage of the trial: intimate details of Anwar and Saiful were revealed, offending public decency and taste. Concerned parents had to shield their children from crude and graphic description of sexual activities.

Politics in Malaysia seldom concern ideology or principles. Since Merdeka, the focus has been on personalities, invariably UMNO Presidents and other senior leaders. Indeed, Anwar benefited from the public image crafted by a pliant media during his 15 year climb up the UMNO ladder.

In Sodomy 2, the politics of sleaze against Anwar reached a nadir, giving gutter politics a new meaning. On a comparative basis, few political leaders across the globe had been the victims of dirty state politics like Anwar.

With the slow rehabilitation of Aung San Suu Kyi and the opposition joining a coalition with Robert Mugabe, even Burma and Zimbabwe may have greater tolerance and respect for their opposition politicians. But in Malaysia, the UMNO controlled forces worked on the principle that in order to destroy Anwar politically, they had to first humiliate him.

Politics of the Acquittal

The burning question is who was responsible for the decision to acquit Anwar on January 9: the Courts or the politicians. Did the trial judge actually make the decision himself or was it in reality a political decision.

The fact that this is the principal aftermath of the acquittal itself is a commentary on the perception by Malaysians (including its lawyers) that in “political” cases the Courts are not independent of the executive.

In the four senior Commonwealth countries whose common law system Malaysia adopts, viz, England, India, Australia and Canada, no right thinking person (and certainly no lawyer) would question a judge’s independence if a similar acquittal had taken place in like circumstances. But not in Malaysia!

The Judge

The only sure way for any lawyer to predict an outcome in a lengthy trial like Anwar’s is to review the trial judge’s overall conduct of that trial and then make a projection. In every criminal prosecution in Malaysia, elementary principles established over centuries forming the bedrock of our criminal jurisprudence have to be applied by every judge (juries having been abolished).

In the course of a trial a judge would have to make numerous rulings on procedural and evidential matters that would have a great bearing on his final decision. He also has to make a fundamental decision when the prosecution closes its case, viz, whether the defence has a case to meet. Only if he is satisfied that these elements have been proven by the prosecution on whom the burden solely rests, and which never shifts to the accused, should the judge call the defence.

Accordingly, applying the only rational basis available to those legally trained, the conduct of the judge during Anwar’s trial was consistently in one direction: totally in support of the prosecution’s case, and wholly unsympathetic to the accused. Hence, a conviction was inevitable.

In consequence, the judge’s acquittal was a U-turn of massive proportions. Lawyers who appear in court, that is, barristers, advocates or counsels, quickly develop a skill in “reading” judges. This is the human element in the judicial process.

No two judges in any country are alike. Each judge has his or her own temperament, personality, likes, dislikes and other idiosyncrasies. Having spoken to experienced lawyers who attended Anwar’s trial for substantial periods and whose antennae on “judge-reading” I respect, the judge’s behaviour on January 9 was in stark contrast with his general demeanour on the bench throughout the trial.

Lawyers who were in court on January 9 informed me that the judge was very edgy in his brief appearance (less than two minutes), merely announcing his decision in a couple of sentences and disappearing thereafter. Having reserved his decision for some months, he ought to have had his written reasons (grounds of judgment) ready for release that day. They have yet to be distributed. Most importantly, he was aware that the acquittal contradicted all his prior rulings against Anwar during the trial.

In the days following Anwar’s acquittal, apologists for the system (including Cabinet Minister Rais Yatim) have been heralding the dawn of a new era in judicial independence. Let me douse such naïve enthusiasm. Cases deemed “politically sensitive” by the judges are so predictable: the Executive always succeeds. Cases triggered by the Perak crisis of 2009 and those filed on behalf of the opposition states of Selangor, Kedah, Kelantan and Penang are recent examples.

An extreme illustration is provided by Kelantan’s oil royalty civil suit against PETRONAS (I disclose my involvement as Counsel for Kelantan). Bizarre and unprecedented rulings have been given by all the three levels of the highest Courts resulting in a transfer of a commercial dispute to the Civil Division, the intervention by the Federal Government as additional defendant when no claim is sought against it and the denial of discovery of documents by PETRONAS which is automatic in a writ action.

Accordingly, the Anwar acquittal will not be the harbinger of better things to come from the judiciary. One swallow does not make a summer!

Najib

If it is not the judge’s decision to acquit Anwar, it must follow that it was a political decision. Certainly two decisions indicate prior knowledge of government of the acquittal. First, it overturned its decision to prohibit the assembly of Anwar supporters in Kuala Lumpur, and agreed to allow them to congregate outside the court — even the police agree that there would be no risk when the crowd receives good news! \

Secondly, the government issued a press announcement within an hour of the court’s decision, welcoming the acquittal. Our bureaucracy never works at that speed.

It is ironic that from its first public announcement, the government has been claiming credit for the acquittal because it apparently demonstrates judicial independence. This is entirely misplaced. In a system of true separation of powers where the Judiciary stands proudly and bravely independent of the executive, the executive can never be praised when judges make independent decisions.

That is how the system actually works. In Malaysia the system has been skewered from Merdeka and the executive can only be criticized for causing it. The executive can never receive praise if the system works as it is supposed to (which is not even the position in Malaysia).

What these announcements demonstrate is a “Freudian slip” on the part of the executive. It confirms that past judicial decisions were contrived at its behest. Because perception shades into reality, it would be difficult to convince the typical Malaysian who has become so cynical of the politically motivated prosecution and trial of Anwar, that his ultimate verdict was not similarly politically motivated. Thus, the fruit of a politically motivated trial is a politically motivated verdict.

Because it was a politically motivated trial, the ultimate acquittal decision was grounded in politics. It is an accepted premise among those campaigning for the hearts and minds of the Malaysian electorate, particularly in the Peninsula, that the real contest at the next election is for the Malay vote.

The Chinese apparently have given up on MCA and Gerakan, while the Indians are either too few or ambivalent about who to support. It should be kept in mind that in the last elections, Pakatan secured 51.3 per cent of the popular vote and 80 seats in West Malaysia.

Barisan Nasional secured 48.7 per cent of the popular vote and 85 seats. The opposition formed governments in 5 of the 11 States, and won 10 out of 11 Parliamentary seats in Kuala Lumpur. Thus a 3 per cent to 4 per cent swing of the popular vote would cause serious damage to UMNO’s chances in Malaya.

In such a scenario, Sabah and Sarawak cannot be considered as safe deposits for UMNO: political parties in East Malaysia have a habit of wanting to join the winning side so that they can be part of the Federal Government. Ideology and principle are also completely absent amongst the politicians on that side of the South China Sea.

It is against a background of a very close general election that Putrajaya made a political calculation: an acquitted Anwar would cause less electoral damage to Umno that a convicted Anwar. The martyr status must be denied to Anwar.

Beneficiaries of the Acquittal

The first beneficiary is Malaysia and its people. If the first sodomy trial in 1998-9 deeply divided and polarized Malaysia, the second trial was received much more cynically, with the vast majority of Malaysians not choosing to believe the version put forward by Saiful.

When the video scandal orchestrated by that paragon of virtue, Rahim Thamby Chik became known, most Malaysians preferred to accept Anwar’s version. The dirty tricks department of UMNO lacks imagination and creativity, and their credibility has been shattered. Hopefully, they will leave Anwar alone. Hence, the acquittal was welcomed by probably the entire Malaysian population, apart from his old nemesis, Dr Mahathir who neither forgets nor forgives, and his small band of supporters.

Secondly, Anwar and his family, at a personal level. Dr Wan Azizah Wan Ismail has always behaved with remarkable poise and calm when her husband has faced the almighty wrath of the State. So have the children. To watch one’s spouse or father being humiliated on the public stage for years must be nerve-wrecking. They have conducted themselves with admirable dignity in terribly adverse conditions.

Politically, Anwar is also a great beneficiary of the verdict. His innocence, expressed from the very first moment in 2008, has been vindicated by a judge who had not shown him any sympathy and who had ruled against him in nearly every prior ruling throughout the trial. He is now a free man who spoke the truth (a rare commodity in Malaysian public life).

The greatest beneficiary is Pakatan Rakyat. Its three constituent parties must be congratulated for never wavering in their public position that their only candidate for the office of prime ministership is Anwar (even if he is in prison).

He is now free to become the nation’s 7th prime minister after the forthcoming general election. It is very much up to Pakatan to make that happen. They should focus on issues: the first that comes to mind is the economy. Bread and butter issues like the galloping cost of basic necessities caused by rampant inflation, the increasing disparity between the rich and the poor, and cheap wages paid to our workers because of the presence of some 3 to 4 million immigrants (legal or others) should be highlighted.

In the wake of the Great Depression in United States and Europe since the 2008 financial crisis caused primarily by grand scale borrowing and massive debt, it is grossly negligent for the Najib administration to spend lavishly by borrowing to stay in power.

Putrajaya’s debt to Gross Domestic Product (“GDP”) has increased in the 2 years of Najib’s leadership from 53.1 per cent to 54.8 per cent. In absolute terms, federal government debt jumped by 71 per cent in four years from RM266 billion in 2007 to RM456 billion in 2011.

In a recent statement, the Malaysian Institute of Economic Research (MIER) warned that at this rate of excessive spending, Malaysia’s national debt would equal its GDP by 2019: a truly frightening prospect. Have they heard of Greece or Ireland? Pakatan should highlight these facts. Lim Guan Eng’s prudent financial management of Penang, on the other hand, will erase its debt in four years, a remarkable achievement.

Anwar is the glue who cements PAS, DAP and Keadilan. He is their undisputed leader and unifying force. He should reduce his foreign travelling in the next 12 months, and concentrate on domestic politics. The nation has to be reminded of his leadership and administrative qualities: former British Prime Minister Margaret Thatcher in a visit to Malaysia in the early 1990’s publicly stated that she would “trade” him to become her Minister of Finance.

The politics of envy that characterized Anwar’s rise in UMNO continued to bedevil him after his fall from grace in 1998. In the subsequent 13 years, numerous “famous” personalities joined his party or supported him, only to fall out dramatically. Each of them predicted the end of Anwar. Instead, where are Chandra Muzaffar, Zainur Zakaria, Ezam Nor, Zaid Ibrahim and Raja Petra Kamarudin?

If UMNO perceives that it too can benefit from his acquittal, it is clearly wrong. The average voter will not easily forget that he was charged and tried by an UMNO government. A mere acquittal will not erase the UMNO stain in the way the State has persecuted Anwar for years. There would be electoral punishment.

The Way Ahead

Closure requires the government not to appeal the acquittal. The Attorney-General, as the chief legal adviser to the government, and the man whom UMNO states took the decision to prosecute Anwar in 2008 should be accountable for his poor judgment. The buck stops at his office.

Both coalitions must discuss and debate weighty national issues, like the economy, education, health, public services or the over-development which is scarring our cities and creating a property bubble.

The electorate must be given a clear choice as to which coalition should be given the privilege of governing Malaysia for the next five years. A true two-party system must occur this time.

Fifty-four continuous years of one-party rule after independence is a sufficient learning curve, even for our cautious electorate! Is the next general election the time for change?

www.themalaysianinsider.com

* Tommy Thomas is a lawyer who occasionally comments on politics and economics.

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