Judicial Crimes And The Political Persecution Of Anwar

SUARA KEADILAN

By Kenny Gan

There are some events in a nation’s  history that have deep and lasting effect, causing ripples that radiate outwards and affect the thoughts and feelings of future generations.

Some are joyful and a cause for annual celebrations while others are tumultuous events that leave deep scars in the national psyche like a troubling memory that will not go away.

The Americans have to live with the psychologically disturbing aftermath of the Vietnam War while the rise of Nazism still haunts the German soul. Decades later, Americans are still traumatized by the assassination of John F. Kennedy while the British will forever be touched by the untimely death of their beloved Princess Diana.

So it is that in Malaysia, the political, social and legal turmoil caused by the sacking of Anwar Ibrahim and his subsequent sham trials will forever be etched into our national consciousness with deep scars of shame and regret that will not easily heal.

But despite the hurt and pain, they can either give us useful lessons to guide our future if we are brave enough to confront them or none at all if we are foolish enough to pretend they never happened.

The Court Proceedings of Augustine Paul

Augustine Paul was a judicial commissioner in the Melaka Sessions Court before he was promoted to the High Court weeks before Anwar  trial specially to hear the case although concerns were expressed over how such a junior figure could be selected to preside over a case of such magnitude.

Anwar was charged with four counts of corruption which involved him as Deputy Prime Minister and Finance Minister asking the police to take action against two individuals (his wife’s  ex-driver Azizan and one Ummi Hafilda) who slandered him with accusations of sodomy in poison pen letters.

The trial began in November 1998. From the beginning, judge Paul illegally restricted Anwar’s defence team from raising the defence of political conspiracy although there was a fallout with Mahathir and an intense political storm before he was arrested and charged.

The prosecution tried its best to prove all manner of sexual misconduct involving men and women against him by presenting affidavits from police officers and hearsay evidence. Azizan the star witness was the only one who claimed to have had first hand evidence of Anwar  sexual exploits, claiming he had been sodomized by Anwar.

A mattress said to contain seminal stains was carried in and out of court daily as a tawdry display of the prosecution’s  most important physical evidence.

During the trial, judge Paul tried his best to protect the government by disallowing any embarrassing evidence or testimony from being tendered with cries of  Irrelevant! This was to be his signature call throughout the trial.

There were sordid side shows that ran in parallel to the trial. Anwar’s  tennis partner, Nallakarupan was arrested and slapped with a bizarre charge which carried the mandatory death sentence for forgetting to renew his license for 125 lousy bullets.

He later claimed that the Attorney-General, Mokhtar Abdullah had bargained a lighter sentence for him if he would implicate Anwar in sexual indiscretions. He refused and one of Anwar’s  lawyers who brought this to the attention of the court was jailed for 3 months by judge Paul for contempt. This must be the first and only time where someone has been found guilty of contempt of the prosecution.

Anwar’s speechwriter, Munawar Anees, his adopted brother, Sukma Darmawan and Mior Abdul Razak, a fashion designer were seized by police and confessions of allowing Anwar to sodomize them were coerced out of them.

They were sentenced to 6 months jail each. As soon as they were released, they repudiated their confessions which they claimed were extracted under torture.  Munawar filed a damning statutory declaration which detailed the manner in which he was psychologically and physically abused to extract his confession.

The relentless attack on Anwar’s character continued. The ex-driver gave dramatic accounts of being forced to be Anwar’s sex slave but his story was variable and unconvincing. Even more damning was that he admitted that there was no sodomy under cross-examination.

Chemist Lim Kong Boon testified that the stains on the mattress contain Anwar’s DNA mixed with several women. However in a brilliant cross-examination, his methodology and expertise were demolished and he was forced to admit that Anwar’s DNA could have been planted. The judge expunged the whole DNA evidence.

By mid-trial it was obvious that the prosecution could not sustain any of the allegations of sodomy or sexual misconduct. Undeterred, they sought to amend the charges to make it unnecessary for them to prove the truth of the sexual allegations.

In effect, the prosecution did not have to prove that Anwar committed a crime to convict him for asking the police to clear his name for the alleged crime. But if Anwar did not commit the crimes mentioned in the poison pen letters, was it wrong for him to ask the police to clear his name? Against the strenuous objection of the defence team, judge Paul allowed the amendment.

Having ruled the sexual evidence was irrelevant, judge Paul refused to allow Anwar the opportunity to rebut them although his character had been damaged by all the sexual allegations and the massive media coverage.

The trial proceeded with judge Paul disallowing the defence from tendering a taped evidence of political conspiracy.  Reported evidence was inadmissible as hearsay when the defence tried to introduce them. Yet the prosecution was allowed to introduce double hearsay. In the grand finale, ten of the defense’s witnesses were disallowed from testifying.

When an application to disqualify the judge for being biased mysteriously vanished from the court registry, Anwar’s legal team had enough. They refused to participate any longer and told the judge they would not make the final submission for Anwar. Judge Paul chastised them for “obstruction of justice” and ruled them in contempt.

In a final parody, Augustine Paul declared that he was “answerable to God” before he convicted Anwar and handed him a harsh sentence of 6 years. The severity of the sentence for technical non-monetary corruption shocked observers. The U.S. State Department called the trial an abuse of human rights.

The Court Proceedings of Arifin Jaka

Not satisfied with their disreputable success, the prosecutors led by Gani Patail proceeded to charge him with sodomy. He was charged with sodomizing his wife’s ex-driver, Azizan Abu Bakar.

Judge Arifin Jaka ran a different court from Augustine Paul. He did not restrict the defence from introducing witnesses and evidence like Paul did though he allowed the prosecution tremendous leeway. He allowed the defence of political conspiracy. As a result, a lot of evidence which were embarrassing and critical of the government were exposed in court.

The star victim-witness proved to be an unreliable witness, changing his story many times under cross-examination and was scolded by judge Arifin for doing so. He claimed to have been sodomized 15 times but still visited Anwar’s family for 5 years after leaving their employment. There was no medical examination to prove that he had been sodomized.

The date of the offence was originally fixed as one night in May 1994. When Azizan testified that he had not been sodomized after 1993, the charge was changed to one night in May 1992. When the prosecution pointed out that Tivoli Villa, the place of the alleged offence had not been constructed yet in 1992, the charge was changed to one night between January and March 1993.

Despite the blatant manipulation of the dates to suit the testimony, Judge Arifin allowed it, saying it was just a simple amendment of a charge. The long interval of the latest date made it difficult for Anwar to defend himself by alibi.

To bolster their flimsy case, the prosecution tendered Sukma’s confession as evidence although Sukma had repudiated it as false and extracted under torture. Still, the judge allowed the evidence to be admitted.

In the end, Anwar was convicted on the unreliable testimony of one accuser whom judge Arifin maintained, “had no reason to lie” although it was brought to the court’s attention that Azizan had become a company director after making his allegation public. The judge handed down a savage sentence of 9 years to be served after the corruption sentence.

The Last Umno Prime Minister

The shoddy way in which the trials were conducted left no room for doubt that justice had not been served. There was no finesse, no artfulness, no pretense of partiality. They were parodies of justice.

If Anwar is to be convicted for sodomy again, it must be with another sham trial as there is simply no other way when two independent hospitals have found no physical signs of sodomy on the alleged partner.

Although things remain calm on the surface, civil society is traumatized by such naked display of power and crude perversion of justice.

The trust between the government and the people is broken and the government’s respect and legitimacy bleeds away. Deep undercurrents of discontent are created which must eventually manifest in some ways.

The social forces unleashed will take time to play out but there will also be immediate effects. Our law enforcement agencies which are already low on public confidence will be dragged even lower which will affect their efficiency and effectiveness. Court orders will not be respected and may not be obeyed. Public cooperation with the police will drop and crime and lawlessness will increase.

The cruel treatment of Anwar in 1998 led to the dawn of ‘Reformasi’ and the birth of the National Justice Party, later to become Parti Keadilan Rakyat. The stage was set for Mahathir’s early departure and it sowed the seeds of BN’s shocking loss of their precious two-thirds majority in 2008.

If Umno wants to maintain its hold on power in the post-tsunami era, the worst thing it could do is to undermine itself by heaping injustice on a popular Malay leader when support for BN among the non-Malays is at its weakest.

If Anwar is convicted again in another shoddy show trial, the social forces unleashed will ensure that Najib becomes ‘The Last Umno Prime Minister’.

Views : We live in confusing times – Ambiga Sreenevasan

Source : The Malaysian Insider

MARCH 27 — On Tuesday, we read about the call for change and improvement by our leaders.

However, just a day or two before that, we also read about the suspension of Harakah and Suara Keadilan, the denial of media accreditation for the Umno General Assembly to The Malaysian Insider, Malaysiakini, the Nutgraph and three others, the breaking up with tear gas of the PKR rally in Bukit Selambau (and the arrest of 21 people) and, of course, the charging of Karpal Singh with sedition.

So why is there this terrible disconnect between what our politicians are saying and what is happening on the ground? Is this a case of over-zealous functionaries trying to second-guess the powers that be? If that is the case then it is easily remedied by immediately reversing these orders. However (as I suspect it is), if these orders have the approval of those at the top, then this is a case of a serious mismatch of word and deed.

This Jekyll and Hyde syndrome reflects an undignified sense of insecurity. Our leaders must make up their minds. Are they interested in upholding the rule of law and our democratic institutions or are they insistent on showing utter contempt for all that we hold dear just to protect the interests of a few? If only they would realise that they are more likely to win the popularity contest if they would instead show utter contempt for dishonesty and injustice and constancy in protecting the rule of law, the independence of our institutions and the freedoms of our people. If only they would realise that the whole world is watching us and that our platitudes on human rights (particularly at the universal periodic review that just took place) ring very hollow.

If this was a fairy tale it would be that of the “Emperor’s New Clothes”. Interestingly in that tale (as in any similar tale), what kept the emperor in denial was the presence of so-called loyal, sychophantic subjects who told the emperor only what he wanted to hear and shielded him from what was in fact the truth.

Another case of mismatch of word and deed is to be found in the case of Karpal Singh’s charge under the Sedition Act. For a start, those who formulated the charge may want to reconsider it in the light of the amendment to the Federal Constitution (pushed through Parliament when the Barisan Nasional had a two-thirds majority in the House) that set up the Special Court. Article 182(2) states that any proceedings by or against the Yang di-Pertuan Agong or the Ruler of a state in his personal capacity shall be brought in the Special Court. Of course there is an argument that the acts of a Sultan in his official capacity are not acts done in his “personal capacity” but it has been suggested that official acts are included. The point is, Parliament, under the aegis of the Barisan Nasional, saw fit to remove the absolute immunity of the Rulers and allow for suits to be filed against them. It therefore follows that one can disagree with, and take legal action to challenge, some acts of the Ruler. Whether such a legal action falls within the ambit of Article 182(2) of the Federal Constitution is something for a court to decide if and when such legal action is instituted. In framing charges against Karpal Singh under the Sedition Act, the authorities appear to have overlooked this constitutional amendment and acted precipitately. I would argue that the particular section in the Sedition Act must be interpreted subject to the constitutional amendment.

Then there is the point of selective prosecution. Let us reflect. There are many who have commented on the Perak crisis from a legal and constitutional perspective and have discussed the actions of the Sultan. However, we must surely also recall the public discussion last year of the appointment of the Terengganu menteri besar that involved the palace. On March 19, 2008, the Attorney-General was reported to have said of our Yang di-Pertuan Agong that “His Majesty cannot interfere in the appointing of the menteri besar.” If one also recalls, it was reported that the palace’s candidate for menteri besar Datuk Ahmad Said, was initially stripped of his Umno membership and 22 assemblymen were going to boycott his swearing in as menteri besar in defiance of the palace. In fact these assemblymen were planning a protest walk from Seri Iman to Istana Tamu. Needless to say there were no prosecutions under the Sedition Act in any of these cases.

More recently, on Monday the Attorney-General put before the Federal Court for consideration four questions, every one of which involved in some way the powers of the Sultan of Perak in appointing the new menteri besar. One example is Question 2 which states : “Sekiranya jawapan kepada persoalan pertama adalah ya, persoalan seterusnya ialah sama ada perkara Duli Yang Maha Mulia Sultan Perak tidak memberikan perkenan itu sah di sisi undang-undang.” Had the application succeeded it would have necessitated arguments on the very issues that Karpal Singh had commented on and for which he is being charged with sedition. Perhaps it is timely for a reconsideration of the charge against him in view of these inconsistences.

“Never do anything against conscience, even if the state demands it” — Albert Einstein

I have often wondered if there was not one man or woman somewhere in our great machinery of government including our parliamentarians, who felt at some point that their conscience did not permit them to carry out or support an act that was so plainly unjust, partisan and unfair. If there is, or are, resignation on principle sends a good message but those who can’t do this must at the very least make it clear that they will play no part whatsoever in acts that smack of abuse of power.

Our hope therefore ultimately lies with the people. Malaysians have changed dramatically; we are more vocal, we are not prepared to suffer in silence or to watch others suffer and most importantly we see clearly what is happening before us. We are bored with explanations or statements that insult our intelligence. We do not accept pronouncements by the authorities or those in power that lack substance. We do not “buy” the divisive rhetoric hurled at us. We are disgusted at the repressive conduct and attempts to muzzle dissent. There must be a “passive resistance” by the people against unjust actions. We have seen ordinary people producing extraordinary results when they stand firm against injustice, dishonesty and the destruction of our institutions. Indeed, what we have seen is an awakening of the will, wisdom and the collective conscience of the Malaysian people. And that is a formidable force that those in power ignore at their peril.