idiot juctice

Innaiya Nanbargale,

The truth always prevails, often through the most unpredictable of opportunities. For years a few Malaysians including me have been pushing to expose the dangerous corruption at the highest levels in the Malaysian judiciary - see <http://www.malaysia.net/special> for vivid pictures and accounts as well. (Conflict of Interest Disclaimer: Malaysia.Net is also owned by me). This time the truth will prevail after 10 years, because of the whole horde of amateurish mistakes being made by the Mahathir regime in persecuting Anwar Ibrahim and those of like mind.

anbudan../bala
bala@tamil.net

p.s. Nallakaruppan, Malaysian India-born Tamil and a key supporting character in the Anwar saga, has become a hero when put to the toughest test - threat of death. He decided within minutes to live for days as a hero than die a coward. And thus, death will evade him for a long time!

Kudos to this warrior for finding the lion in him.

---------- Forwarded message ----------
Date: Thu, 05 Nov 1998 05:23:05 +0800
From: Charles Hector <chef@tm.net.my>
To: chef@tm.net.my
Subject: Unconfirmed source..

The following article questioning the impartiality of our judiciary was forwarded to me. Whether the article is fair or not is open for discussions. In fact an Australian paper yesterday indirectly questioned the assumptions of many that our courts are `compliant cyphers'of the executive government. Can we therefore have some rebuttals to the points raised in the following article ...?
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

PUBLIC PROSECUTOR v ANWAR IBRAHIM

THE CRIMINAL CASE AGAINST ANWAR IBRAHIM
FORMER DEPUTY PRIME MINISTER OF MALAYSIA

INTRODUCTION

1.The Government of Malaysia under the leadership of Dr Mahathir Mohamad appears to be directing a public-relations exercise to convince Malaysians and the international community that the Malaysian judiciary is independent and should be able to make its decision freely in the criminal case against Dato' Seri Anwar
Ibrahim, former Deputy Prime Minister of Malaysia.

On October 16, 1998, the Prime Minister of Malaysia, Dato Seri Dr Mahathir Mohamad, is reported to have said in the New Straits Times Newspaper: "No one should question the independence of the Malaysian judiciary and its ability to make decisions freely because it has proven that it is not beholden to the Government."

2. It is sad to say that the history of the Malaysian judiciary during the Mahathir regime is such that no one has ever been successful in the Malaysian Courts either as the plaintiff or the defendant (in civil suits) or accused (in a criminal case brought by the State), once Mahathir has branded that person as his enemy or political rival or nuisance to his grand scheme of things. This is evident from the following cases. Mahathir and the Mahathir Government have won all these fights in the Courts.

(a) Lim Kit Siang's suit against United Engineers Bhd & Dr Mahathir;

(b) Tengku Razaleigh Hamzah's action against UMNO Baru;

(c) Salleh Abas's fight against dismissal as the Lord President;

(d) The Non-Governmental Organisations' challenge of the massive
    Bakun project in Sarawak on environmental grounds; and

(e) The Sedition Act and Printing Presses Act charges against Lim
    Guan Eng.

3. On the other hand, a politician who is close to the heart of Dr Mahathir,Rahim Tamby Chik - the former Chief Minister of Malacca - had criminal charges for statutory rape against him conveniently withdrawn by the Attorney-General. In the Lim Guan Eng High Court trial , the then 15 year old girl involved gave evidence on oath ( at the age of 17+ ) that she had sex with Rahim.

4. For the Malaysian judiciary, a critical watershed is 1988. Before that the judiciary could be characterised as politically conservative but reasonably independent. However after the sackings of Tun Salleh Abas as the Lord President ( the highest judge of the land ) and two senior Supreme Court judges orchestrated by Mahathir in order to protect his political position, the Malaysian judiciary 's independence from the executive has been severely compromised.
In the nineties, not only was the Malaysian judiciary politically compliant, corruption amongst the judiciary right up to the top has become a serious problem.It manifested its ugly head publicly in cases such as the infamous Ayer Molek case. Political subservience to the executive by the judiciary was clearly demonstrated in the Lim Guan Eng case where in an unprecedented way, an opposition Member of. Parliament, who was perceived as a rising star in the
opposition Democratic Action Party ( DAP ) was tried and sentenced to eighteen months jail under the Sedition Act and the Printing Presses and Publications Act for publicly exposing the case of statutory rape of a 15 year old girl.

5. The case against the former Deputy Prime Minister, Dato' Seri Anwar Ibrahim, is not really a legal fight. It is a political battle in the guise of a legal battle. The political stakes are high indeed in this fight when a senior High Court Judge was transfered from the High Court in Kuala Lumpur to the High Court in Shah Alam, after he granted an injunction on the book "50 Dalil...".. Based on his seniority, this judge was actually overdue for elevation to the Court of Appeal.

2. THE BEGINNING OF EXPOSURE OF CONSPIRACY AGAINST ANWAR BETWEEN THE POLICE, THE ATTORNEY-GENERAL'S CHAMBERS AND THE JUDICIARY IN THE DATO NALLAKARUPPAN CASE

a) A friend of Anwar Ibrahim, Dato' Nallakaruppan, was arrested on 31 July 1998, held incommunicado for 14 days and then charged in Court on 12 August 1998 for illegal possession of bullets at his house (although he has a gun licence). Initially, he was charged under the Firearms Act which carried penalties of fine and/or jail and which was bailable. However shortly after, the charges against
him were withdrawn and he was recharged for the same offence under the Internal Security Act, 1960 which carried a mandatory death sentence and for which there was no bail.

b) Nallakaruppan was then remanded in Sungei Buluh Prison near K.L pending his trial. Suddenly police officers moved him in a unprecedented manner to solitary confinement in Bukit Aman ( Police Headquarters ). Initially the police even denied his lawyers access. Finally they secured access to him and then Nallakaruppan then filed an application in court that he was being unlawfully held in police custody when he should be in the custody of the prison authorities
and asked for his transfer back to prison. More significantly, he said in a 14 page affidavit sworn on 24 August 1998 that he was being subjected to mental and physical torture in order to sign false statements involving Anwar. He was subjected to threats such as he would hang under the ISA and things would happen to his wife.

c) The conduct of the hearing of this application by the High Court judge on 3 September 1998 ( the day after Anwar is sacked as Deputy Prime Minister ) exposes the conspiracy against Anwar further. On 2 September 1998, the Prosecutors filed several affidavits in reply to Nalla's earlier affidavit. Significantly, all the police could say in reply to Nalla's detailed complaints of abuse to him and pressure to sign false statements was a one paragraph bare denial. Normally such a bare denial would not have any credibility in a court.

d)The Prosecutors also filed a long affidavit by a senior police officer making a litany of scurrilous and defamatory allegations against Anwar ranging from sexual misconduct to corruption and treason against the country. The statements in this police afidavit were all hearsay and even double-hearsay without even the sources being named. Such evidence would not be admissible even in a civil case and certainly not legally admissible in a criminal matter. The
purpose of this scurrilous affidavit was soon revealed.

e) It was then found that the Attorney General's Chambers had forwarded the affidavits to the press at the same time they were filed in court and even before they were given to Nalla's lawyers. First Nalla's lawyers asked for an adjournment ( which would have been only to Nalla's detriment as he would be kept longer in police custody in Bukit Aman ) so that Nalla could file an affidavit in reply. The High Court judge REFUSED this request and ordered them to proceed. They then told the High Court judge ( Datul Wahab Patail, elder brother to the leader of the team prosecuting Anwar now ) that he should stop publication of the affidavits since they were not even read in court and they were clearly intended for the purpose of character- assassination of Anwar in through the media. They then asked the Judge to issue an interim order to stop
publication until full arguments could be heard on the issue, otherwise it would be futile if he decided to stop publication later. He refused, and needless to say he ruled later that the affidavits could be published since they were "public documents". The Mahathir-controlled media ran special editions with full texts
of the defamatory affidavits.Nalla then issued a statement later denying the contents of the police affidavit but this statement was never published.

f) The Judge then went on to rule that the police could continue to detain Nalla in Bukit Aman. Most shockingly, he never dealt with the most important question Nalla raised - that he was being subjected to duress to sign false statements. The Judge said nothing significant about this.

g) These events expose the fact that the police were actively seeking in August to force false statements implicating Anwar in order to justify action by the Prime Minister. It is also clear that the Attorney-General was part of this conspiracy and the Judiciary were prepared to lend its assistance to this illegal exercise by the police and to bend to the whims of the executive

3. THE CONSPIRACY CONTINUES TO UNFOLD WITH QUESTIONABLE CONFESSIONS ON 19 SEPTEMBER 1998 OF POTENTIAL STATE WITNESSES AGAINST ANWAR

a) Bizarre circumstances surround the way in which confessions were obtained from two potential State witnesses against Anwar Ibrahim (under the sodomy charges). They were Dr Munawar Anees (an internationally known scholar) who was Anwar's speechwriter for some time,and Anwar's adopted brother, Sukma Dermawan (a businessman). On Saturday 19 September, 1998,both pleaded guilty in separate Sessions Courts to being sodomised by Anwar and were sentenced to six months in prison. Dr Munawar had been arrested under the ISA the previous
Tuesday 14 September 1998 and held incommunicado until produced in court. Sukma had been arrested under criminal procedure investigation provisions on 4 September 1998 and detained incommunicado for 15 days before production in court. Dr. Munawar has recently filed an affidavit in court in the course giving
details of being subjected to torture.

b) Two lawyers unknown to the families of the two men had been appointed for them to handle the confession hearing. Dr Munawar told his family that the lawyer acting for him at the hearing had been appointed for him by the deputy public prosecutor for the case, one Azahar Mohamed. Incidentally this Azahar is also one of the four deputy public prosecutors appointed by the Attorney General to handle the criminal case against Anwar.

c)Lawyers appointed by the families were not allowed to meet with the two on the day of confession and sentencing. It is interesting that the proceedings ran parallel in two separate courts and yet identical sentences were handed down.

d)Manjit Singh Dhillon, appointed subsequently by Munawar's wife to represent him for the filing of an appeal against the conviction and sentence, informed the press that it is unusual that the two men who on the facts alleged were victims of a sexual crime, were prosecuted instead instead of the perpetrator of the offence.

e)Several suspicious and irregular events happened after the guilty pleas.First family appointed lawyers for Sukma were denied access to him in Kajang Prison on the ground that only the lawyer who acted for him at the confession hearing would be allowed to see him. His sister saw him the day before and was asked expressly by him to appoint a lawyer for him.The day after family appointed lawyers attempted to see him at Kajang Prison, Sukma was whisked away by
police from Kajang Prison and has since been kept in police custody at Police HQ. No access has been allowed to family appointed lawyers. His sister has proceeded to instruct lawyers to file an appeal against his conviction and sentence. She believes that he is now being pressured by the police to withdraw the appeal against conviction and sentence.

f)Immediately after his conviction, Dr Munawar was warded in hospital for a serious heart ailment. Lawyers were able to meet him in hospital. He has instructed the filing of an appeal against his conviction and sentence. Dr Munawar had recently filed an affidavit in Court saying that after his appeal was filed, the police and the lawyer Yacob Karim (who was appointed for him by the Deputy Public Prosecutor earlier) had kept trying to persuade, threaten and advise him against proceeding with the appeal.

g)An example of the amount of prejudicial material against Anwar's legal case (in connection with the Dr Munawar/Sukma affair) is the press statement of the Prime Minister made on September 22, 1998, who said, inter alia: "But he did not expect his own adopted brother and his friend will come out in the open and make this statement. They made this statement because I believe the police,
who are Muslims,and those knowledgeable about Islam, pointed out to them that what they committed was a great sin and punishable in the after-life and they need to repent and recant. But it would seem to that they decided they should come clean, even at the risk of their families being shamed by their confessions. What they said was the absolute truth. Anwar has not sworn in the mosque as he claimed. What he did was just to say "I swear." And that is not good enough.
The fact is that the man had for years been masquerading as a religious person and yet had been committing these things not today, not yesterday, but for years."

4. ARREST AND DETENTION BY POLICE OF OTHER POTENTIAL
      WITNESSES AGAINST ANWAR

On 12 September 1998, Mohamed bin Ahmad , private secretary to Anwar in the DeputyPrime Minister's office was arrested and held incommunicado for 14 days. On 16 September 1998,Azimin Hj. Ali ( Anwar's private secretary in the Ministry of Finance) was detained by the police and held incommunicado for seven days. These men were questioned in detail about Anwar in what were clearly oppressive circumstances. The police are clearly instruced after Anwar's
removal from office to question his associates and find information to jusfify his removal and to finish him off politically as well.

ANWAR IS DETAINED ON 20 SEPTEMBER 1998 UNDER THE ISA - EVENTS
SUBSEQUENT

1. DETENTION UNDER THE INTERNAL SECURITY ACT (ISA)

Anwar was arrested on September 20, 1998 under the Internal Security Act, 1960, a law that Human Rights Groups consider to be a gross violation of basic human rights. This law permits lengthy detention without charge or trial. Subsequently a number of Anwar's friends and allies were detained under the same law. Some have since been released on condition that they would disavow any statement to the public of any harsh treatment whilst under detention.The first stage of ISA detention provides for up to 60 days of incommunicado
detention in solitary confinement. Previous testimonies of detainees confirm use of mental and physical torture and round the clock interrogation to break down the detainee to a compliant state. Then detention can be continued for two years at a time and renewed indefinitely. Anwar has since been released from ISA detention on 14 October 1998 but has been denied bail.

2. TRIAL BY THE MEDIA

a)On October 5, 1998, Anwar Ibrahim was charged in the High Court, Kuala Lumpur, on 5 counts of corruption [under section 2 (1) of the Emergency (Essential Powers) Ordinance No 22,1970] and 5 counts of sodomy [under section 377B of the Penal Code]. He pleaded not guilty toall the charges and asked for trial. The Deputy Public Prosecutor informed the Court that the first 4 charges would be tried (jointly) while the rest would be stayed. However, well before his hearing, there has been unprecedented trial by the Malaysian media, where
maximum coverage has been given to speeches/statements made by the Prime Minister, Cabinet Ministers and UMNO leaders saying that Anwar is immoral and is not fit to be the Deputy Prime Minister of the country. A former Inspector-General of Police conveniently revealed in public recently that his officers had gathered evidence of Anwar's homsexuality as far back as 1993. However the former Attorney-General who was holding office at that time said that he was never informed of any such conduct on the part of Anwar by the
police then.

b)An example of the prejudicial material against Anwar's case in the media is the press statement made by the Prime Minister, Dr Mahathir Mohamad, on September 22, 1998. In this statement he said:   "It is quite true that a lot of people still believe in him. I must say even for me it took me years to believe allegations made against him. First time I was told about him was by the         previous IGP Hanif. I dismissed it as a false allegation. Subsequently, I was told last year about him. I dismissed this and I said this is out of sheer jealousy for my man who is going to be a leader of the party. I had concrete proof that it was true, before I could leave (sic) but other people cannot very well get that kind of information that I got. I actually interviewed the people who were
sodomised, the women whom he had sex with, the driver who brought the women to the place."

c) The statement made by Dr Mahathir Mohamad on September 22, 1998
included this remark:

" We also have proof of his corruption. But I'm not interested in that. I cannot accept a sodomist to be a leader of this country."

3. CAVALIER ATTITUDE TOWARDS CHARGES TO BE MADE AGAINST ANWAR

On September 20, 1998 i.e. on the night of Anwar's arrest by the anti-terrorist police unit known UTK (Unit Tindakan Khas), Anwar was told by a senior police officer that he was being arrested under section 377D of the Penal Code (a form of unnatural sex with a jail punishment of up to 2 years). The next morning, however, Malaysians were told that Anwar was going to be charged for causing riots in the city. By late evening the same day, the police announced that Anwar was being detained under the Internal Security Act. In the Sessions Court on September 29, 1998, Anwar was charged in Court with 5 counts of corruption (under an Emergency Ordinance)and 5 counts of sodomy under section 377B of the Penal Code.

4. ANWAR BEATEN WHILE UNDER ISA DETENTION

Anwar Ibrahim made a statement in the Sessions Court on September 29, 1998 that the police had beaten him while held incommunicado under the Internal Security Act, 1960. Anwar had injuries to his left eye, and suffered neck and head pains. He was not allowed to see a doctor for 5 days after the beating.

5. TRANSFER OF SESSIONS JUDGE WHO ALLOWED ANWAR TO BE EXAMINED BY A FAMILY APPOINTED MEDICAL SPECIALIST

At the Kuala Lumpur Sessions Court hearing on September 29, 1998, after Anwar was charged, his lawyers made an application to the Court that he be allowed to speak directly and put on record what happened during his beating. The judge took form 12.40 p.m. to 3.00 p.m. to decide to allow him to speak. For most lawyers, there was no question of even having to deliberate the issue when an accused person is asking to inform the court directly of an assault in custody.It is indicative of the kind of pressure brought to bear on the judiciary where they have to wrestle with how the executive might react to their rulings. After Anwar spoke , the Sessions Judge then allowed an application by Anwar's lawyers that a family-appointed eye-specialist be allowed to examine Anwar's eye
injury. The Deputy Public Prosecutor objected. The Sessions Judge has now been transferred to the Civil Division of the Sessions Courts. An extract of the medical report issued by Dr Shukri states:

"When I examined him on September 29, 1998 he was conscious and rational. He had a resolving haematoma (blood-clot) and oedema (swelling) with a depression over the left forehead, a very dense ecchymosis (bruise) over the entire left upper and lower eyelids and this ecchymosis extended medically into the left upperside of his nose and also lower down into the maxiliary (cheek) area. There was tenderness (pain on touching) over th entire area."

6. REQUEST FOR PRIVATE DOCTORS TO GIVE FULL MEDICAL EXAMINATION TURNED DOWN BY COURT

At the Petaling Jaya Sessions Court hearing on September 30, 1998, an application was made for family-appointed private doctors (specialists) to give Anwar a full medical examination on account of the alleged beating of Anwar. This was on the basis that his head and spinal injuries needed attention from different doctors. This request was refused by the Sessions Judge. She did however allow the request by the Deputy Public Prosecutor to have Anwar
examined by two Government-appointed mdecial specialists. Until today, the reports of these specialists have not been been made available to Anwar's family or lawyers. Information has been received that these doctors are under police pressure with a view to making them tone down the contents of their reports.

7. ASKING THE POLICE TO INVESTIGATE THE POLICE

The Prime Minister, Dr Mahathir, while making a public statement saying that the police would investigate the alleged beating, made a remark that Anwar's injuries may have been self-inflicted.

THE CONDUCT OF THE HIGH COURT TRIAL TO DATE - QUESTIONS OF
INDEPENDENCE AND A FAIR TRIAL

1. THE "SELECTION" OF THE JUDGE S. AUGUSTINE PAUL J.

For many of the legal profession, especially after observing the Nallakaruppan episode, there are serious concerns as to whether Anwar will get a fair trial. Many lawyers and members of the public in fact cynically already "know" the outcome of the trial in the sense that there will be a conviction on at least one count. It is clear that this is politically necessary to put Anwar away physically and politically.

A question immediately arises as to the fairness and independence of the trial in the process of selection of the judge itself for the following reasons. The High Court of Kuala Lumpur is organised into divisions, Criminal, Civil, Commercial and Special Powers. Each division has several courts with sitting judges in each. Cases filed or registered in these courts are then heard by the judge sitting in that particular court unless for some reason he disqualifies himself from hearing the case or transfers the case to another. The process of transfer is usually transparent and upon the application of the parties involved. The system is set up in this way to prevent allegations of lawyers attempting to have their cases heard by a particular judge or "fixing" the judge. Similarly in the Criminal Division, there are two sitting judges, Dato K.C. Vohrah and Dato Wahab Patail. Anwar's lawyers were told by the Criminal Registry that his case was registered in both courts. Judge Wahab Patail is clearly disqualified from hearing Anwar's case as he was involved in Nallakaruppan's case. No explanation has been given as to why the senior judge in the Criminal Division, i.e. Vohrah is not hearing Anwar's case. Vohrah is known to the legal profession as an independent judge. Is this why he is not hearing the case. He is the most senior High Court judge in Malaysia and has plenty of criminal trial experience. Augustine on the other
hand was recently elevated as a High Court judge in May this year and was transferred from Malacca very recently to the Special Powers Division in the High Court. How and why has he been picked in such an arbitrary manner by the Chief Justice to hear Anwar's case? Is it a case of the prosecution fixing their judge to obtain a particular verdict? The facts would suggest so.

2. INITIAL PRELIMINARY RULINGS BY THE JUDGE ON BAIL AND ACCESS
TOLAWYERS

a. Bail

Augustine Paul denied Anwar bail after he claimed trial to all the charges on 5 October 1998.The prosecution objected to bail on the ground that there were allegations of tampering with witnesses by Anwar. No clear or concrete evidence was produced to the court of such tampering-it remained a mere allegation. However Augustine explained that his denial of bail was based on the prosecution
allegation AND the fact that some of the charges against Anwar involved tampering with witnesses in the very facts alleged. The judge seemed to be completely overlooking the fact that the charges alleged tampering by Anwar using his power in his capacity as Deputy Prime Minister. He is now no more the Deputy Prime Minister -hence such alleged tampering in that manner could no longer arise! The denial of bail for these offences is unprecedented. All previous
accused charged under this particular Ordinance for corruption have been allowed bail. The denial of bail looks clearly politically motivated.

b. The judge then went on to make a number of rulings against the interest of the defence such as only allowing three out eight lawyers to visit Anwar in detention at any time. Only two designated lawyers would be allowed to speak to Anwar in court at any time. When the defence asked that 5 plainclothes policemen placed around Anwar in the dock stand at the back of the court, the
judge said "he did not want to interfere with security matters".

c. INADEQUATE TIME FOR PREPARATION OF THE DEFENCE

The High Court only allowed a trial date of less than one month from October 5, 1998. The date given by the Court was based on a date suggested by the Deputy Public Prosecutor. Despite a request by lawyers for Anwar for a trial date of two months from October 6, 1998, it was turned down by the Court, although the Court did rule, after repeated requests by the Anwar's lawyers, that if there was
still inadequate time for preparation of the defence, the lawyers for Anwar could write to the Court for an extension of time. Malaysian courts generally allow criminal trial dates of 3 months or more to enable the accused's lawyers to prepare their defence. There was greater need for time in the Anwar case as he was in communicado from September 20, 1998 detention date.

3. UNPRECEDENTED NUMBER OF POLICEMEN IN COURT

So many police officers (in plainclothes or in uniform) in Court, were stationed in Court. It is believed that they constituted the majority in Court, thus preventing many family members and reporters from attending Court. Unlike most court cases, where any member of the public can come to court, the police prevented members of the public from coming to hear the Anwar case, saying that they had orders to do so.

4. HARASSMENT OF LAWYERS

As of October 10, 1998, starting from the time he was sacked as DPM, eight of Anwar's team of lawyers had been questioned by the police using provisions of the Criminal Procedure Code. On the pretext of asking for information in respect of police investigations into alleged tampering of witnesses, police attempted to question Anwar's lawyers on matters directly or indirectly related to his charges. Several lawyers in the Anwar defence team are being tailed by the
Special Branch (secret police). Lawyers believe that their house telephones, office telephones and even hand telephones are being monitored by the police.

5. DR MAHATHIR'S STATEMENT ON FOREIGN OBSERVERS AT TRIAL

a) The Prime Minister on October 21, 1998 is reported to have said that the
Government will not entertain any application by foreigners to be observers at the forthcoming trial of Dato'Seri Anwar "as the presence of foreign obsevers will put pressure on this country's judges". This statement gives the impression that attendance in Court is at the discretion of the Executive branch of Government. By making this remark, the Government of Dr Mahathir is actually given a directive to the judiciary.

b) It is not for the Government to decide whether any one ought to be given observer status at any trial. Such a decision can only be made by the Court. In the Lim Guan Eng appeal [wherein he appealed against his conviction for sedition] in August 1998, the Federal Court granted observer status to representatives of Amnesty International and International Commission of Jurists, after an application was made by defence counsel.

c) Under section 8 of the Malaysian Criminal Procedure Code, the place in which any criminal Court is held for the purpose of inquiring or trying any offence shall be deemed an open and public Court to which the public generally have access.

The Anwar Report
October 24, 1998