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| justice ripin jaka a disgrace to rembau |
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| The Judge's Summary Judgment on the Anwar Ibrahim Trial Guilty Verdict Elements to be proved in the charge under section 377B Penal Code: 1) that the accused sodomised the victim (Azizan Abu Bakar); 2) he did it voluntarily; 3) penetration occurred. The prosecution's case rests principally on the evidence of Azizan. The evidence of the defence's case is of alibi and conspiracy to fabricate evidence. In order to establish whether the elements have been proved, it is necessary to consider the credibility of Azizan. Azizan gave evidence for a total of 10 days and was cross-examined aggressively and extensively. He came out unscathed. There is also evidence for cross-examination of Senior Assistant Commissioner Musa Hassan that Azizan has made five prior consistent statements. This enhances his credibility. There is no necessity for Azizan to lie, as he has nothing but everything to lose by coming out with this complaint. In addition, his evidence is consistent with confessions of Sukma (Dermawan Sasmitaat Madja) which I have found to be voluntary. I am also convinced of the truth of what is stated in the confession. This finding is consistent with the fact that Sukma had used this confession in his mitigation when he had pleaded guilty earlier in session court when he was charged for an offence under Section 377D. It is therefore my finding that evidence of Azizan is credible. With regard to corroboration and evidence of Azizan, it is sufficiently supported and corroborated by the confession of Sukma. Although it is a confession of the accused, it is a piece of substantive evidence. It can therefore be used against the first accused. To that extent it corroborates the evidence of Azizan against both accused. The evidence of Azizan is also corroborated by the conduct of the first accused which is: Firstly, the first accused requested to SAC Musa to stop investigations into the allegations against him; secondly, in asking Azizan to lie about the declaration that he had made, that is P5. With regard to the second accused, there are two charges, namely for abetting for sodomy and sodomy. There is ample evidence to establish these two charges in the confession made by Sukma which has been supported by Azizan's evidence. The defence of the first accused is one of alibi, conspiracy and conspiracy to fabricate evidence. If these defences are accepted, then the charges of the second accused will also collapse. In his alibi defence, the first accused must show that he was at a different place from Jan 1 to March 31, 1993. No such evidence was adduced as to his whereabouts for this period of Jan 1 to Feb 12,1993. Therefore, the evidence of alibi fails. With regard to the defence of the second accused, that offence of sodomy could not have taken place because his apartment was under renovation. No evidence was adduced to show when renovation works started and were completed. Even though there is evidence to show that renovation works were in fact carried out, these findings do not create any reasonable doubt that the offence was not committed in that apartment. Even if the divan and mattress were not delivered until Feb 12, 1993, to my mind it does not mean that there was no other bed and mattress. With regard to the defence of fabrication, I am satisfied that the evidence on record does not support the defence. The evidence of Tun Haniff Omar in the question asked by the first accused (Anwar Ibrahim) on the possibility of police blackmailing him indicates that the first accused had something to worry about. The evidence of Azizan when he said the first accused asked him to lie in the declaration when the first accused asked Musa to stop investigations against him militates against the defence of fabrication of evidence. I am therefore satisfied that the defence had not raised any reasonable doubt in the case of the prosecution. For the above reason and after considering the circumstances of the case and evidence adduced, I am satisfied that the prosecution has proved its case against both accused beyond reasonable doubt. I therefore find both the accused guilty of the charges. Judge Arifin Jaka High Court |
| r. jaka the culprit |
| The Anwar Trial Notes Of Proceedings - Monday 7th December 1998 -------------------------------------------------------------------------------- Public Prosecutor vs. Dato Seri Anwar Ibrahim SKELETAL SUBMISSIONS By Christopher Fernando Dengan izin Yang Arif: 1. It is the Duty of the court to evaluate the evidence at this stage The entire evidence adduced by the prosecution and that adduced by the defence particularly in view of the fact that the court had not given any reasons for calling upon both accused to enter their defence. 2. Foremost on the courts mind ought to be the crucial fact that the charges were amended twice. (and the lack of a credible explanation for this). 3. Initially the two accused were alleged to have committed the offence on "one night in 1994" and then it was amended to, "one night in September of 1992," and quite amazingly before this particular trial commenced it as amended yet again to, "one night between January and March of 1993." 4. This fact in the particular circumstances of the case assumes enormous importance when taken in the light of Azizans, evidence especially his unprecedented admission that he did not inform the police that the crime was committed on any of those dates mentioned. 5. It has been the defence case throughout the proceedings that the charge against Dato Seri Anwar Ibrahim is false and fabricated and that there was a high-level conspiracy to topple Dato Seri Anwar Ibarhim by by procuring and using fabricated evidence. It is submitted that in this regard the defence have clearly succeeded in doing this from the cross-examination of the relevant prosecution witnesses and the evidence adduced through the defence witnesses that were called. (The defence of alibi) It is submitted that the court need to no further than to analyse the four sets of pertinent questions that I asked Azizan and the answers he gave in response thereto to conclude that the charge is false and fabricated: (i) Q: Did you tell the police that you were sodomised in 1994? A: No (ii) Q: Who fabricated that evidence? A: I dont know Q: Did you tell the police you were sodomised in 1992? A: No (iii) Q: Who told the police you were sodomised in 1992? A: I dont know Q: Who fabricated this evidence? A: I dont know Q: The date 1992 is false? A: Yes Q: I put it to you that the charge had to be amended to 1993 because the building was not even ready for occupation? A: I dont know (iv) Q: Were you told to change the date to 1993? A: Yes Q: Did you agree to this proposition? A: Yes Q: Who asked you to change the date to 1994? A: SAC Musa bin Hassan The pertinent question the court has to ask in this regard is if Azizan, the alleged accuser had not told the police that the crime as committed on those date who did, bearing in mind, there are no witnesses in a case of this type. Submit : There is no answer to this crucial question. The result is that these charges must of necessity be fabricated charges. Look at this crucial piece of evidence from any perspective and the only and plausible conclusion that can be arrived at is that the charges preferred against Dato Seri Anwar Ibrahim (one after another) are nothing more than palpably fabricated and false charges. Submit : There are no two ways about this, the accused MUST be acquitted on this piece of evidence alone. Submit : The prosecution's case has been irreparably demolished by the admission of the prosecutions most important witness. The court did ask one disturbing question in the course of the proceedings: "Are you saying there was no sodomy despite P5?" I answered "Yes, without any reservations". What is P5 after all P5 is merely a letter that claims Azizan was sodomised in various hotels in 1992 Compare P5 with Azizans admissions adverted to earlier, the conclusion is still the same. In fact it makes it worse, Azizan, it ought to be remembered that told the court that he did not tell the police about the dates particularly 1992 and in my further questioning of Azizan he admitted categorically that the date 1992 was false! AZIZAN'S CREDIBILITY The credibility of any material witness is of paramount importance. In this case Azizan is not merely a material witness, he is the most important witness, because the entire prosecutions case depends on his evidence. The Court will have to decide as a question of fact in accordance with established legal principles whether or not his evidence can be accepted as a basis for finding the accused person guilty of such a serious charge. Can there be any doubt whatsoever that Azizan is a totally unreliable and indeed a lying witness. (See relevant portion-Notes of Evidence) The court itself had made adverse observations about the credibility of this witness in the course of the proceedings. The Court had occasion to remark as follows, "This witness says one thing today and another thing tomorrow". On another occasion the court had this to say, "This witness refuses to answer even simple questions". There are several other instances, which I need not go into. Th Court would have noted that this witness kept changing his evidence and that he was a witness whose credibility is suspect. The Court has seen and heard Azizan give evidence and the remarks which the Court recorded are profoundly significant and reflects the Courts own observation that Azizan was an unreliable witness and that he was being evasive. Having made such an observation can the Court now be asked by the prosecution to hold that Azizan is a reliable witness and to convict the accused bearing in mind that the prosecutions charge of sodomy depended entirely on Azizans evidence. The prosecution would in deed be asking the Court to go against its own finding and observation as regards the credibility of Azizan. By doing this the prosecution would contribute to the complete erosion of public confidence in the administration of justice. In that event we would all incur the wrath and condemnation of all right thinking members of society. I urge the Court in all good conscience not to be influenced by such an untenable submission The fundamental question the Court will have to ask in this regard is can a conviction be justified in such unique and unprecedented circumstances. Submit: such a decision would clearly and unmistakably be completely against the weight of the evidence adduced. CORROBORATION Such cases require corroboration. Submit: There is no corroboration as regards the issue of sodomy. The law is that no amount of corroboration can save the credit of an unreliable witness. In this regard any witness requiring corroboration has to pass a twin-test. a witness must be found to be reliable; there must be material corroboration from independent witnesses or other sources of his evidence If a witness is found to be unreliable as in this case, the matter stops there. (See: R v. KILBOURNE: SARWAN SIGH v. STATE OF PUNJAB) A CLEAR LINE AS TO BE DRAWN BY THE Court between what constitutes proof and what constitutes suspicion to avoid the danger of relying on suspicion to convict the accused person. A further instance of Azizans lack of credibility was exposed in the previous trial when questioned by me and his answers were to the following effect (we produced the Notes of Evidence in this court): Q: I put it to you, it was because DSAI did not do anything to you that is why you kept visiting him between 1992-1997 otherwise you would have kept faraway from him. A: Yes, its true. The interpreter repeated the question. Again his answer was, "Yes, its true but I dont understand the words did not do anything. The court then interrupted, "perhaps you had better be more specific". CF: I will I put it to you that DSAI DID NOT sodomise you that is why you kept visiting him and his family between 1992-1997. A: I agree that he did not sodomise me that is why I continued to visit him between 1992-1997. (Note: The Court recorded the question and answer only once) These questions and answers have proved beyond the shadow of a reasonable doubt that DSAIs accuser himself had clearly and unambiguously denied being sodomised. Again I ask can there be any doubt that the allegation of sodomy contained in the charge is false and fabricated when the only person who could have provided the answer had exonerated DSAI and denied sodomised by the latter? His futile attempts at explanation (in re-examination by the prosecution) to salvage this most damning piece of evidence were to no avail. (There was no credible explanation from this witness.) This is another classic instance where the alleged accuser (in not so many words) is telling the Court that the charges against DSAI are false and fabricated. Azizans answers in cross-examination go to the very root of the matter and prove that the accused had not committed the offence alleged against him. These admissions are profoundly significant and no one can deny that the accused is entitled, without more, to an acquittal. Not content with these answers the prosecution went further (in re-examination) when Dato Ghani b. Patail asked a very pertinent question (a general question which again turned out in favour of the defence). Although the question seemed to be unfair it is to the following effect: Q: Did DSAI sodomise you after September 1992? The clear and unambiguous answer was this, "after September 1992 DSAI DID NOT sodomise me until today". Again what significance does this answer have in this case? On a proper and careful analysis of this piece of evidence (raised in re-examination) it means that Azizan has now shifted his position (albeit unfairly and again raising questions about his credibility) he is saying in no uncertain terms that after September 1992 he was NEVER sodomised. Even assuming for a moment Azizan is now telling the truth (and giving Azizan the benefit of the doubt which he does not deserve), the cut-off point in so far as sodomy is concerned is clearly and unequivocally September 1992. In this Court in his chief examination he says or rather he lied that he was sodomised between January and March of 1993. The Court will now have to pause and ask itself, "is Azizan not telling a most flagrant and brazen lie in the circumstances. The crucial question is, "can the Court on the admissions of Azizan himself find the accused guilt of the offence preferred. Submit: No Court faced with these facts can convict in the light of this type and quality of evidence and in particular the clear admissions of Azizan. We ask the Court to reconsider the impeachment proceedings taken against Azizan. Submit: Azizan had not given a reasonable explanation as regards to the serious contradiction in his evidence. He was not able to explain why in the previous trial in answer to the DPPs question, he stated "after September 1992 until today I WAS NOT sodomised" bearing in mind that this was the question asked by the DPP during re-examination (It was a general question) His answers during the impeachment proceedings covered only his first statement that is "DSAI DID NOT sodomise me that is why I continued to visit him between 1992 to 1997". Urge the Court to examine the notes of evidence carefully, as this fact will become evident. Beyond dispute that Azizans evidence given during the previous trial and the evidence given during this trial as regards to the question of sodomy completely exonerates DSAI. This fact cannot be over stressed. Prosecution must accept the facts and must along with the defence ask for an acquittal of the accused. Reiterate: DSAIs accuser had admitted in the clearest terms that he was not sodomised. Submit: No right thinking person can persuade the court on this type and quality of evidence to find the accused guilty. To do so would be literally going against a brick wall. Facts are facts. You cannot change facts. Submit: All other evidence becomes redundant in the light of these unprecedented admissions. ALIBI EVIDENCE Submit: The alibi evidence adduced by the defence proves beyond the shadow of a reasonable doubt that DSAI did not commit the offence as alleged between January 1993 to March 1993. It is significant that when SAC Musa bin Hassan was asked whether he wished to investigate DSAIs alibi he said, "Yes." It is quite amazing that the prosecution advised him not to do so. The inference to be drawn from this: The chief investigator in this case is unsure whether DSAI had committed the offence one night between January 1993 to March 1993 and wants to investigate but was told by the prosecution not to. Submit: Courts remarks highly pertinent "if the prosecution do not investigate it is their own funeral." Submit: Prosecution had engineered their own funeral by refusing to accept the offer by the defence to investigate. Submit: Had they investigated they would have assisted the Court to arrive at the truth to clear both the accused. Submit: The prosecutions stubborn refusal to investigate DSAIs alibi has resulted in a long and protracted trial. More than 100 days of trail could have been saved had the police taken the trouble to verify the authenticity of the alibi. Submit: the evidence as regards the alibi was left largely unchallenged. Submit: the alibi remains intact. Again on this score alone, the two accused are entitled to an acquittal in accordance with the law. Submit: Law and authorities on the defence of alibi are clear and unambiguous. Law on alibi evidence in brief to the effect that once an accused person raises the defence of alibi and shows that he was not at the scene of the offence during the time alleged, it is for the prosecution to prove by cogent and reliable evidence the contrary. Poser: Can it be said by any stretch of the imagination that the prosecution have proved by cogent and reliable evidence that the accused was at the scene of the alleged offence between January 1993 to March 1993? The answer is obvious. LAW: As regards the defence of alibi, all that an accused person has to do is to raise a reasonable doubt that he was not at the scene of the crime at the alleged date. In this regard there is no duty on the defence to provide corroboration. Despite this the defence has nevertheless gone further and provided corroboration to assist the Court. DEFENCE That there was a high level conspiracy to topple DSAI by procuring and using fabricated evidence. Submit: That the conspiracy to topple DSAI and the procurement of fabricated evidence go hand in hand. You cannot have one without the other. Submit: It cannot be said that there could have been a conspiracy to topple DSAI and that this is a normal occurrence in politics. The court has to look at the evidence adduced in a larger perspective. Submit: The conspirators could not have conspired merely to topple him without more. In this instance, they could only achieve their ends that is to remove DSAI from the political arena by using fabricated evidence of sodomy to discredit him. Submit: There are two facets to this master plan of the conspirators; To procure the fabricated evidence Inconsequence thereof to topple him You cannot topple or get rid of a person by doing nothing. The conspirators in this instance used false and fabricated evidence to achieve their ends to destroy DSAI. (Clear and convincing evidence adduced by the defence in this regard) EVIDENCE ADDUCED BY DEFENCE IN THIS REGARD DSAIs Evidence: the numerous instances of altercation, quarrels and disagreements between Dato Seri Dr. Mahathir Mohammad and DSAI. His reports of corruption to the PM against various ministers for corruption and wrong doing resulted in bad blood&.. Not only between DSAI and PM but also between DSAI and Tun Daim Zainuddin, Tan Sri Rahim Thamby Chik, Datuk Seri Paduka Rafidah Aziz Shamsudin resulting in some of these people ganging up against him to destroy and remove a political enemy. Ultimatum given to DSAI : resign or we will charge you in court highly pertinent. THE EVIDENCE AQDDUCED BY THE DEFENCE TO SHOW ATTEMPTS AT PROCURING FABRICATED EVIDENCE AGAINST DSAI Jamal Rahmans evidence: Offered money by a Malaysian diplomat in Washington to fabricate evidence against DSAI (not challenged) Manjit Singh Dhillons evidence: That both Datuk Nalla Karuppan and Datuk Munawar Anees were asked to fabricate evidence against DSAI. In the case of Datuk Nalla Karuppan in exchange for his life. In the case of Datuk Munawar Anees in exchange for incentives. (not challenged-tape recorded conversation) The evidence of YB Azmin Ali: That Ummi Hafilda was promised money and other incentives to prevail upon Azizan to obtain fabricated evidence against DSAI. Ummi Hafildas admissions to Azmin that it is too late to back out of the infamous deal as some money had been paid to her (not refuted) Ummi Hafildas statutory declaration in Court is pertinent. Note: YB Azmin Alis evidence on this issues remain intact and largely unchallenged. Raja Kamaruddins evidence: To the effect that he was recruited by Datuk Aziz Shamsudin as a conspirator with a view to toppling DSAI. Evidence that Datuk Aziz Shamsudin would take care of the fabricated evidence himself and the role assigned to Raja Kamaruddin. Maamin a former army commando testified about Azizans admissions to him centering on fabrication of evidence. ASP Zull Aznams evidence: (a serving police officer) About Azizans admission that he accused DSAI in return for money. Azizans own admission that he was made director of an on-going company and the plum job that he was offered and accepted. Undisputable evidence to prove there was as stated earlier a high level conspiracy to-get rid of DSAI by using false and fabricated evidence. Submit: the duty of the defence when the accused is called upon to enter his defence is merely to raise a reasonable doubt on the prosecutions case. Submit: The defence have gone much further than what is required of them. They have proved beyond any doubt whatsoever that the charge preferred against both the accused is false and fabricated designed to silence DSAI by those who were afraid he might become the next PM and would in turn expose those who are corrupt and guilty of criminal offences. THE ADMISSIBILITY OF EVIDENCE OF THE ABOVE WITNESSES THE LAW: Poser: The question that has been posed is, whether such evidence is relevant to this case. Chapter II of the Evidence Act 1950 covers relevancy of facts. Section 5 of the Act states that evidence may be given of facts in issue and relevant facts. One of the facts in issue in this trial has been that there is a conspiracy against the Accused, and that evidence had been extorted from certain people and false confessions had been obtained while some refused to participate in the evil machinations of the conspirators. On that score alone, any evidence that the prosecution or the police have dome the same thing in any other case directly or indirectly involving or affecting the Accused is relevant under Section 5 of the Act. Such evidence would involve facts in issue in this trial. It would establish the defence case of conspiracy, subornation of witnesses and affect the credibility of the evidence of the prosecution. Surely anything that affects the credibility of the prosecutions evidence is relevant. Section 7 of the Act states that facts which are the occasion, cause or effect of facts in issue are relevant. Section 8 of the Act states that any fact is relevant which shows or constitute a motive or preparation for any fact in issue or relevant fact. The preparation or prosecution witnesses is a relevant fact, and attempts at extortion of evidence or fabrication of evidence in relation to the Accused in this or any related or connected case is a relevant fact. Section 11 of the Act states that facts which are not otherwise relevant become relevant if they make the existence or non-existence of any fact in issue highly probable or impossible. (Paragraph (b) of this Section has been considered to be on the same footing as Sections 14 and 15 of the Act concerning the admissibility of similar fact evidence.) (See MACKIN V. THE ATTORNEY GENERAL OF NEW SOUTH WALES and related authorities). Section 14 of the Act states that facts showing the existence of any state of mind and ill will towards any particular person are relevant. Section 15 of the Act states that the fact that an act formed part of a series of similar occurrences, is relevant. (Although this section has traditionally been used against an accused person, there is no reason why it cannot be applied, by analogy, to the prosecution, to the investigative arm of the state, and to prosecution witnesses.) the evidence of these witnesses is therefore highly relevant to establish the truth or falsity of material facts in this case. The evidence affects material facts in this case. It involves persons connected to this trial and involved in these proceedings. It affects the credibility of the prosecution evidence, and is clearly RELEVANT THE LAW It is the duty of the prosecution to prove each and every ingredient of the charge beyond a reasonable doubt. Upon the defence being called, all the accused has to do is to raise a reasonable doubt on the prosecutions case. Irrespective of whether the court is otherwise convinced in its own mind of the guilt or innocence of an accused person its decision must be based on the evidence adduced and nothing else. Suspicion however strong, can NEVER in law be a substitute for proof. (See: TEOH HO CHAI v. PP (FEDERAL COURT); SIA SOON SUAN v. PP) Section 114(g) Evidence Act: An adverse inference ought to be drawn against the prosecution for failing to call certain material witnesses who could have assisted in unfolding the truth. Azizans admissions which goes to show that he had not been sodomised cannot be trivialized. The court cannot ignore the extent and the resolve of the investigating agency in marshalling fabricated evidence against the accused. The efforts and the unrelenting attempts made in the regard were not only confined to our country by extended to the United States of America. Submit: The evidence adduced is both unprecedented and frightening. Submit: On the principal of Choo Cheng Teck and another against PP and Federal Court held that in certain circumstances it is incumbent upon the prosecution to call evidence in rebuttal when allegations are made against the investigating authority. Poser: Why was Mustapha Ong one of those accused of procuring fabricated evidence from Jamal Rahman not called to rebut his evidence? Why was Datuk Dali the then Malaysia ambassador to the United States of America not called to rebut the allegation that Jamal Rahman reported to him the crime attributed to Mustapha Ong. These diplomats are still easily available to the prosecution. They could and should have called them. Submit: Prosecution evidence does not meet the standard of "guilt beyond a reasonable doubt." Submit: For the prosecution to urge the court to convict on this type and quality of evidence. It is submitted would see the beginning of the destruction of the criminal justice system. Submit: It would be setting an extremely dangerous precedent to convict a person on the type of evidence before the court. Submit: It would be turning the clock backwards. Prosecution has reminded the court to maintain its integrity and we agreed. It is imperative that entrenched fundamental legal principles are adhered to and not brushed aside. The law is not to be trifled with. Submit: It would be a crime against humanity for the prosecution to claim that they have proved their case beyond a reasonable doubt on the evidence before the court. It would be a black day in Malaysian legal history if a man can be found guilty in these circumstances. SUBMIT For generations to come Malaysians will have to live down the shame if the prosecution asks that DSAI be convicted despite Azizans clear admissions exonerating the accused. Student, lawyers and the public at large will invariably question how a conviction can be obtained on the evidence adduced and we will suffer the wrath and condemnation of the entire nation and indeed the world. Since the prosecution has reminded the court about the importance of maintaining its integrity I will do the same. The court has a bounden and onerous duty to maintain its integrity and credibility by ensuring that no person who is entitled in law to an acquittal is convicted. The accused has a RIGHT to expect this and nothing less. I urge the court to do what is RIGHT AND EXPECTED of it to follow the dictates of the law to enhance and protect the Rule of Law. Reiterate: The Courts decision must be based on the evidence adduced and nothing else. Terima kasih, Yang Arif. |
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| lowering himself and malaysia's judiciary to the level of azizan |
| azizan - jakar's credible witnrss |
| Saturday June 16 Judge's ruling on sodomy conviction a mockery: Anwar 12:03pm, Sat: (AFP) - Jailed Malaysian politician Anwar Ibrahim said Saturday his sodomy conviction last year was a mockery and could be the result of political pressure on the high court judge. Anwar was responding to a full judgement by High Court Judge Arifin Jaka made public a day earlier, 10 months after he was convicted. The ex-deputy premier, who was already serving a six-year sentence after being convicted in 1999 of abuse of power, was jailed for another nine years in August 2000 after being found guilty of sodomy against former family driver Azizan Abu Bakar. Anwar said it was "preposterous" for the judge to liken Azizan's credibility to being as solid as the Rock of Gibraltar. "It is at best the shifty Great Jelly of Gibraltar given the countless predictable contradictions, convolutions and utter lack of corroboration," the politician said in a statement issued by his lawyer. "It is a mockery that my watertight alibi was dismissed outright with no weight given." Anwar noted the disclosure by another senior judge last week of pressure from a superior to drop a politically-sensitive case, and said he was "not surprised if similar actions were taken in my case." Police have mounted an investigation into the revelation by High Court judge Muhammad Kamil Awang that a superior ordered him in 1999 to drop a case in the eastern state of Sabah, on Borneo island. The judge however went ahead and ordered a member of the ruling coalition to vacate his seat in the Sabah state assembly after ruling he won it with the help of "phantom voters," paving the way for a by-election. Appeal Anwar said his lawyers were drafting an appeal against Arifin's ruling, and would submit it to the courts soon. Arifin, in his 206-page ruling, said it was "pitiful" that Anwar had indulged in such an "act of self-destruction which led to his downfall" and that he deserved to be condemned. The judge also rejected Anwar's claims of a high-level conspiracy to fabricate evidence against him involving several ministers. Anwar, who was sacked and detained in September 1998, says he was framed to avert a political challenge to Prime Minister Mahathir Mohamad, an allegation denied by the government. He has become the symbol of opposition to Mahathir, who completes 20 years in office in July. |
| Thursday June 14 Azizan 'a truthful and credible witness': justice Ariffin K Kabilan 10:43pm, Thu: Azizan Abu Bakar, the star witness in the sodomy trial involving former deputy prime minister Anwar Ibrahim, was a reliable and truthful witness, said High Court judge Arifin Jaka in his written judgment which was delivered today. “I have dealt with the issue of Azizan’s credibility in depth and my finding that he is a truthful and credible witness still stands as solid as the Rock of Gibraltar,” said Arifin (photo) in his 212-page judgment. Today's written judgment came 10 months after Ariffin delivered his controversial oral verdict on Aug 8 last year. The prosecution had relied on the evidence of Azizan, who was the former driver of Anwar’s wife Wan Azizah Wan Ismail, to show that Anwar and his adopted brother Sukma Darmawan Sasmitaat Madja were involved in acts of sodomy. During the trial, Azizan gave graphic details of the alleged liaisons between Anwar and Sukma, adding that he was forcefully violated sexually by both of them. Last August, Arifin had found Anwar and Sukma to be guilty of sodomy and sentenced Anwar to nine years jail and Sukma to six years jail and two strokes of rotan. In his judgment today, Arifin referred to the defence’s submission that Azizan had contradicted himself during the trial when he said at one point that he was sodomised by Anwar and at another point that he was not, and that Azizan had not explained the contradiction. Another contradiction which the defence found in Azizan’s testimony was the different dates which the former driver said the alleged offences took place. Paid money To this, Arifin said that he found there to be no contradiction between what Azizan had said in regards to the act of sodomy. “Even assuming that there is a material contradiction, I am more than satisfied that Azizan had successfully explained the contradiction,” added Arifin. The judge also said that the defence had relied on a testimony of a defence witness, ASP Zull Aznam Haron, who had said that Azizan told him that he (Azizan) was paid money to make the allegations against Anwar. Zull Aznam was Anwar’s aide-de-camp (ADC) from 1997 to 1998. “However, I am inclined to believe that this conversation never took place and I am convinced that Azizan never told the witness about it.” “The alleged conversation under the circumstances is the brainchild of the witness to suit the defence,” added Arifin. Arifin said that despite various objections and “arguments without any merit” by the defence on the credibility of Azizan, he still “finds that Azizan’s credibility remains intact”. “I am of the firm view that Azizan was speaking the truth ... he had nothing to gain whatsoever but stood to lose everything if his evidence was not true. Further, one cannot conceive that one would fabricate a serious charge of sodomy against one who was both the finance minister and deputy prime minister,” said Arifin. Arifin also said that he found Sukma’ confession to the police that he and Anwar sodomised Azizan to be the truth, despite Sukma claiming at the trial that he was forced to confess. He also added that by case-laws, Sukma’s confession can be used against Anwar to show that he, too, had participated in the act. ‘Absurd and incredible’ Arifin also said that based on Azizan’s evidence, it was established that Azizan was sodomised by Anwar and Sukma, thus refuting the defence contention that the charges against Anwar and Sukma were false and fabricated. “I am also satisfied that on the evidence, both the accused committed the act of carnal intercourse against the order of nature voluntarily. There is no contrary evidence to show they were forced to commit the offence,” he said. On Anwar’s defence that he was elsewhere during the time the alleged offences were said to have happened, Arifin said the defence of alibi failed to raise a reasonable doubt as it did not cover the entire duration which Anwar was alleged to have committed the offences, that being between January and March 1993. “The alibi covered the period only from Feb 4 to March 31, 1993 and is therefore incomplete,” said Arifin. The judge also dismissed Anwar’s claims that there was a high-level conspiracy to topple him by procuring and using fabricated evidence. Arifin said that on the evidence adduced by defence witnesses on the conspiracy theory, he was satisfied that this defence was not substantiated. He said that the witnesses’ narrations on the theory were “fertile imagination”, “suspect”, “worthless” and “hearsay”. Arifin also said that the evidence of former director-general of the Anti-Corruption Agency (ACA) Shafee Yahaya showing the existence of bad blood between Anwar and Prime Minister Dr Mahathir Mohamad was “merely to create an adverse impression on the PM that he had interfered with the work of the ACA”. Shafee had testified that Mahathir had “scolded” him for raiding the office of the head of the Economic Planning Unit. “I am of the view that it is absurd and incredible that the PM scolded Shafee for the raid and asked him to close the case,” said Arifin in his judgment. Arrogant attitude Arifin added that the defence had failed to create any reasonable doubt and that the prosecution had proved its case beyond a reasonable doubt. Arifin also commented on Anwar’s behaviour in addressing his mitigation, stating that he had used the opportunity to make a political speech to highlight his grievances and dissatisfaction with Mahathir and also attack the judiciary. “He displayed an attitude of arrogance and disrespect to the bench and levelling against his former colleagues and political allies allegations of corruption and malpractices which are not relevant to the issues before the court,” said the judge. Arifin also said that Anwar had tarnished the image of those people in the eyes of the public at a forum where those people had no opportunity to defend themselves. On imposing consecutive sentencing on Anwar, who is also serving a six-year jail term for abuse of power, Arifin said that the two offences were distinctly different and a concurrent sentencing would not reflect the seriousness of the sodomy offence. Anwar is appealing against both sentences. |
| Saturday June 16 Jaka’s believe it or not? Paul Warren 4:34pm, Sat: High Court judge Arifin Jaka's written judgment which was finally "forced out" 10 months too late, reinforces the standard to which the courts have reduced themselves in applying their "right to choose what they wish to believe". He 'chose to believe' that Azizan was truthful and believable at the time he delivered the judgment. Azizan was found guilty of khalwat whilst he had pleaded that his new found religious beliefs were what led him to come out accusing Anwar of sodomy. Jaka, once again in his written judgment, applies the test of believability on the strength of "he had nothing to gain whatsoever but stood to lose everything if his evidence was not true". Yet he fails to apply the same test on the testimony of former director-general of the Anti-Corruption Agency (ACA) Shafee Yahaya showing the existence of bad blood between Anwar and Prime Minister Dr Mahathir Mohamad. Does he mean to suggest that Shafee had nothing to lose in making such a testimony? Did it not occur to Jaka that a man who became the top guy of the ACA is now seen to be a man who is unbelievable to his friends and society? Jaka chooses to apply different sets of tests as he wishes. Does Jaka have the right to such discretion? If indeed the judiciary as a whole can happily rely on Jaka's test of believability and admission of uncorroborated evidence, then surely the Election Court judge Muhammad Kamil’s allegation of judicial interference should also be determined along the same precedence set by Jaka. Eusoff Chin cannot complain if this test was applied because he allowed such a test to be applied while he was chief justice. Let us be fair to that man who is languishing in jail because our courts have reduced themselves to such a lowly test. In closing, I would like to simply apply the human test and I challenge Jaka and all men on this one simple test. After so many years I still very clearly remember the day I lost my so-to-speak “virginity”. Azizan Abu Bakar claims to have been sodomised by none other than a man destined to be the next prime minister and yet he cannot place the time of when it happened with any amount of certainty, a timing that is only believable when one chooses to believe it as one can choose to believe that in fact it was the stork that delivered him into this world! |
| Saturday June 16 A shoddy judgment KB Gan 4:30pm, Sat: After reading High Court judge Arifin Jaka's written judgment on the Anwar Ibrahim sodomy trial, I am thoroughly disgusted by the abysmal quality of the judgment. The unsubstantiated testimony of the prosecution's star witness, Azizan Abu Bakar was described as truthful, credible and "solid as the Rock of Gibraltar" while any testimony by the defense was dismissed as absurd, incredible, fertile imagination, hearsay or some other prejudicial remark. As Azizan's testimony was totally unsubstantiated, the judge seems to relying solely on his personal feeling and opinion that Azizan was a truthful and credible witness who had no reason to lie. He seems to have forgotten that he had once scolded Azizan for "saying one thing now and another thing the next day" during the trial. Having nothing concrete to grasp, the judge could only pepper his judgment with personal opinion statements such as "I believe", "I'm satisfied", "I'm convinced" without citing any grounds for such conviction. The judge was quick to dismiss the testimonies of defense witnesses as unsubstantiated despite the fact that the defense had produced many witnesses to bolster its case of conspiracy. Their interlocking testimonies which painted a clear picture of conspiracy were all dismissed in disparaging terms. However the testimony of the sole witness for the prosecution who had nothing and nobody to back him up save for the repudiated affidavit of a person who said he was forced to confess to a crime he did not commit was taken at face value despite his inability to stick consistently to his story. Why was the same standard of proof not applied to the prosecution? Why is the judgment filled with all manner of speculative opinion? Arifin Jaka's summary remarks says it all: "I am of the firm view that Azizan was speaking the truth ... he had nothing to gain whatsoever but stood to lose everything if his evidence was not true. Further, one cannot conceive that one would fabricate a serious charge of sodomy against one who was both the finance minister and deputy prime minister". It is sad that a man could be convicted of a serious crime and jailed for nine years on nothing more substantial than the uncorroborated and unproven testimony of one accuser who in the judge's personal opinion, "had nothing to gain by lying". This is circular logic to the extreme. By the same logic, should we then believe each and every accuser of vile crimes against another and dispense with time wasting trials because they stand to lose everything if they had lied? Also, it is not for the judge to base his judgment on whether or not he can conceive that a person can commit such a crime against such and such a person. This is pure speculation and it has no place in a court of law where a man's freedom and reputation hang in the balance. The fact that the judge had to draw comfort from these flawed arguments shows how painfully he has to scrape the bottom of the barrel to get some dregs to bolster his untenable conclusion. Clearly it is not easy to convict an innocent man and back it up with logical, cogent arguments. In the end, the judgement is illogical, flimsy and unconvincing. Are the public to be insulted with such low quality judgement? People will be more convinced than ever that Anwar was convicted on the basis of a show trial. |