justice augustine paul

Executive Summary of the First Trial
On 2 September, 1998 Dato' Seri Anwar Ibrahim, one of Malaysia's most popular political leaders, was dismissed from his position as Deputy Prime Minister and Finance Minister by the Prime Minister, Dato' Seri Dr Mahathir Mohamad. On 3 September, 1998 Anwar was sacked as Deputy President and member of the country's ruling political party - the United Malays National Organisation (UMNO)- by the party president, Dr Mahathir.

Many people were shocked not only by Anwar's dismissal but the bizarre reasons given by Dr Mahathir for the sacking. Dr Mahathir told the whole nation in no uncertain terms that his former Deputy was "a sodomist who also indulged in illicit sex." The immediate result of the unfair dismissal was a series of unprecedented vocal public demonstrations by ordinary people in the streets. In the context of the country's young political history, seldom has this kind of anger been seen before. Police action against the peaceful demonstrators was swift and brutal. Dr Mahathir continued to utter a continuous tirade of scandalous and libellous remarks against Anwar through manipulation of the mainstream media, the party machinery and certain state agencies.

On 20 September, 1998 Anwar was detained under the notorious Internal Security Act, a law that provides for detention without trial. On 29 September, 1998 Anwar faced nine charges in the Kuala Lumpur Sessions Court. Another charge was preferred against Anwar in the Petaling Jaya Sessions Court. After the ten charges were read out by the Court interpreter to him, Anwar pleaded not guilty and claimed trial. It was at the Sesions Court that Anwar revealed to the world at large the 'black eye' and the shocking news that he was beaten while under police custody. It turned out later, after deliberations by a Royal Commission of Inquiry, that his assailant was none other than the national police chief!

The trial was subsequently transferred to the High Court by the Public Prosecutor. When the trial commenced on 2 November, 1998 before High Court judge Augustine Paul, ten charges were preferred against Anwar, but the Public Prosecutor decided to try Anwar on the first four charges first. The case is entitled PUBLIC PROSECUTOR v DATO SERI ANWAR BIN IBRAHIM (Criminal Trial Nos 45-48-98 & 45-47-98).

The first four charges were tried jointly and were as follows:

First Charge
"That you, between 12 August 1997 and 18 August 1997, at the Official Residence of the Deputy Prime Minister, No 47, Damansara Road, in the Federal Territory of Kuala Lumpur, while being a Member of the administration, to wit, holding the post of Deputy Prime Minister and Minister of Finance, committed corrupt practice whereby you had directed Dato Mohd Said bin Awang, Special Branch Director and Amir bin Junus, Special Branch Deputy Director II, Royal Malaysian Police, to obtain a written admission from Azizan bin Abu Bakar to deny sexual misconduct and sodomy committed by you for the purpose of protecting yourself against any criminal action or proceedings, and as a result of which Azizan bin Abu Bakar had thereby made a written admission dated 18 August, 1997 to the Prime Minister as directed, and you have thereby committed an offence punishable under section 2(1), Emergency (Essential Powers) Ordinance No 22/1970."

Second Charge

"That you, on or about 27 August 1997, at the Official Residence of the Deputy Prime Minister, No 47, Damansara Road, in the Federal Territory of Kuala Lumpur, while being a Member of the administration, to wit, holding the post of Deputy Prime Minister and Minister of Finance, committed corrupt practice whereby you had directed Dato Mohd Said bin Awang, Special Branch Director and Amir bin Junus, Special Branch Deputy Director II, Royal Malaysian Police, to urge Azizan bin Abu Bakar to give a written public statement to deny sexual misconduct and sodomy committed by you for the purpose of protecting yourself against any criminal action or proceedings and as a result of which Azizan bin Abu Bakar had thereby given a written public statement as directed, and you have thereby committed an offence punishable under section 2(1), Emergency (Essential Powers) Ordinance No 22/ 1970."

Third Charge

"That you, between 12 August 1997 and 18 August 1997, at the Official Residence of the Deputy Prime Minister, No 47, Damansara Road, in the Federal Territory of Kuala Lumpur, while being a Member of the administration, to wit, holding the post of Deputy Prime Minister and Minister of Finance, committed corrupt practice whereby you had directed Dato Mohd Said bin Awang, Special Branch Director and Amir bin Junus, Special Branch Deputy Director II, Royal Malaysian Police to obtain a written admission from Ummi Hafilda bte Ali to deny sexual misconduct and sodomy committed by you for the purpose of protecting yourself against any criminal action or proceedings, and as a result of which Ummi Hafilda bte Ali had thereby made a written admission dated 18 August 1997 to the Prime Minister as directed, and you have thereby committed an offence punishable under section 2(1), Emergency (Essential Powers) Ordinance No 22/1970."

Fourth Charge

"That you, on or about 27 August 1997, at the Official Residence of the Deputy Prime Minister, No 47, Damansara Road, in the Federal Territory of Kuala Lumpur, while being a Member of the administration, to wit, holding the post of Deputy Prime Minister and Minister of Finance, committed corrupt practice whereby you had directed Dato Mohd Said bin Awang, Special Branch Director and Amir bin Junus, Special Branch Deputy Director II, Royal Malaysian Police, to urge Ummi Hafilda bte Ali to give a written public statement to deny sexual misconduct and sodomy committed by you for the purpose of protecting yourself against any criminal action or proceedings, and as a result of which Ummi Hafilda bte Ali had thereby given a written public statement dated 29 August 1997 as directed, and you have thereby committed an offence punishable under section 2(1), Emergency (Essential Powers) Ordinance No 22/1970."

The Offence

The offence that I was alleged to have committed is provided under section 2(1) of the Emergency (Essential Powers) Ordinance 1970. It states:

"Any member of the administration, Parliament or State Legislative Assembly or any public officer, who commits a corrupt practice shall be liable to jail up to 14 years or fine up to RM20,000, or both."

o The term "Member of the Administration" means, in relation to the Federation, a person holding office as Minister, Deputy Minister, Parliamentary Secretary or Political Secretary and, in relation to a State, a person holding a corresponding office in the State or holding office as member (other than an official of the Executive Council). This is provided under section 2(2) of Ordinance 22 read with Article 160(2) of the Federal Constitution.
o The term "Corrupt Practice" means "any act done by an Member or officer referred to in subsection (1) in his capacity as such Member or officer, whereby he has used his public position or office for his pecuniary or other advantage; and without prejudice to the foregoing, in relation to a Member of a State Legislative Assembly includes any act which is contrary to the provision of sub-section (8) of section 2 of the Eighth Schedule of the Federal Constitution or the equivalent provision in the Constitution of a State.

When the case commenced, the prosecution produced a list of 52 witnesses to buttress their case. Save for Azizan Abu Bakar and Ummi Hafilda Ali, most the witnesses for the prosecution were police officers and government servants. The DNA evidence, presented by expert witness Lim Kong Boon, and touted by the prosecution as its deadliest evidential arsenal yet against Anwar, was blown apart by four members of the defence team in one of the finest cross-examination on scientific evidence ever seen in the courts Malaysia.
Then came the biggest bombshell in the trial - the amendment of the four charges on 12 January, 1999. The words "to deny sexual misconduct and sodomy committed by you for the purpose of protecting yourself from criminal action or proceedings" were deleted from the charges. The effect was that the prosecution didnt have to prove that Anwar had committed the alleged sexual offences; they only needed to prove that allegations were made against him. As this amendment came at the closing stages of the prosecution case it was vehemently objected to by the defence. Leading defence counsel Raja Aziz Addruse argued that the amendment was unjust and prejudicial as it was done at such a late stage, when Anwars name had already been tarnished. Further, counsel said, since the prosecution had been adducing evidence to show that Anwar had committed the alleged sexual misconduct and sodomy, the amendment was clearly prejudicial to Anwar. Raja Aziz reiterated:

"Throughout the life of the mattress in this court, it has been suggested this was the scene of sexual misconduct. It was brought to court even before PW12 (chemist Lim Kong Boon) gave his report. Now that the findings of the chemist had been challenged severely, and if I may submit, very effectively, the prosecution now says that what they intend to prove in the amended charges concerns only the allegations. Anwars name and that of Shamsidar Taharin were smeared throughout the trial, and the prosecution now tells us that sodomy and sexual misconduct allegations are not a major part of the charges."
In a press statement issued by Wan Azizah, Anwars wife, on the same day, she said:
"What were the prosecutions motives in these amendments of the charges? Is this not an extension of the mala fide prosecution and political conspiracy that the defence had contended throughout. For Malaysians and the world, it does not matter. Anwar is vindicated. The prosecutions retreat into legal technicalities of their right to amend cannot mask the truth. They have set out to prove their allegations. They have failed. We are grateful to God for that."
On 14 January, 1999 Justice Augustine Paul, created another perplexing precedent. He ordered that all evidence that had been adduced to prove or rebut the allegations of sexual misconduct and sodomy against Anwar be expunged. He further ordered the parties to focus on "corrupt practices". Again Raja Aziz objected, and urged the court to express regret over the prosecutions conduct in adducing prejudicial evidence, "now expunged, which led to injustice." Counsel added, "If an injustice has been done, it is the courts duty to see that remedial measures are taken."
At the end of the prosecution case, the judge ruled that there was a case for the defence to answer. The trial proceeded to stage two, when defence witnesses gave evidence. Anwar, the first defence witness, spoke of the use of "the instruments of government" to frame him. He accused the police and the Attorney-Generals office of being involved in the fabrication of evidence against him. He spoke of the role of Ummi Hafilda Ali and Azizan Abu Bakar and how they were used by the "conspirators" to make damaging allegations against him and to give evidence in court against him. The star witness for the prosecution, Azizan, had given evidence that Anwar had obtained from him a written admission to deny sexual misconduct and sodomy. This was accepted by the judge. However, the fact that Azizan had admitted three times that he was not sodomised by Anwar while under cross-examination by Anwars counsel, Christopher Fernando, was ignored by the judge. A defence attempt to introduce the transcript of a tape recording of a conversation in London involving a key prosecution witness, Ummi Hafilda, which appeared to support the defence contention that there was a conspiracy, was blocked by the judge. The contents of two confidential Special Branch (police) reports introduced in court in order to show the existence of conspirators in Anwars party, UMNO, and who were out to topple him from power, were considered irrelevant by the judge. It was evident to everyone that from the commencement of the trial, the word irrelevant had become the judges signature tune.

On Tuesday, 16 March, 1999 Anwar, obviously exasperated by the innumerable rulings against him by the judge in the trial, applied to disqualify Justice Augustine Paul from continuing to hear his case on the basis that he had been denied a fair trial by the judge. Anwar said, based on Justice Pauls rulings, the judge had pre-judged the issues, precluded the defence from presenting its case in full, expunged evidence in his favour and applied different standards to the prosecution and defence when admitting evidence. Anwar also accused the judge of interfering in his lawyers questioning of witnesses to the extent of (the judge) "himself taking on the mantle of the prosecution".

To support his serious allegations, Anwar cited various rulings of the judge:

"including those allowing the charges to be amended when it became clear to them (the prosecution) that they were unable to prove the truth of the allegations, and expunging the evidence on the allegations. Expunging it from the records, far from avoiding prejudice to me, was in fact, to the prejudice of my case and could not possibly be in the interest of justice. My counsel had advised me that they had not come across any other criminal case where a Court had expunged evidence upon allowing a charge to be amended. This must be the first case where the court does not consider the truth of allegations relevant to the issue of guilt and where it does not seem to be interested in ascertaining the truth. The judge had precluded the defence from establishing its case."
Anwar further challenged the judges ruling to the effect that summaries of witnesses evidence must be given in advance to enable him (the judge) to rule on the issue of relevance. The former Deputy Prime Minister said this ruling was not only unusual but would have the effect of obliging the defence to disclose to the Court and the prosecution, in advance, the evidence to be adduced from the defence witnesses. According to Anwar, the judge, after hearing the summaries and arguments, had disallowed several witnesses from giving evidence.
Anwar also cited the finding of contempt against one of his lawyers, Zainur Zakaria, who had filed an application to remove the two senior prosecutors, Datuk Abdul Gani Patail and Azahar Mohamed, on the ground that they sought to obtain fabricated evidence against him. Anwar also referred to his failure to obtain bail from the judge and the many questionable rulings made by the judge on hearsay evidence, especially evidence involving the Prime Minister and Inspector-General of Police, which the judge had disallowed.

Anwar's criminal trial for "corrupt practices" lasted 77 days, making it the longest High Court trial in Malaysian legal history. On 14 April, 1999 Anwar was found guilty and sentenced to six years imprisonment on each of the four charges, the jail terms to run concurrently and to commence from the date of sentence.

Anwar appealed to the Court of Appeal. On Saturday, 29 April, 2000 the three judges of the Court of Appeal, namely Court of Appeal President Tan Sri Lamin Yunus (the country's second highest-ranking judge after the Chief Justice), Dato Ahmad Fairuz Sheikh Abdul Halim and Dato Mokhtar Sidin, affirmed the decision of the trial judge. Lamin said:

Lamin: "We are unanimous in our decision. All appeals are dismissed. I dont propose to read the judgment."
Everyone was stunned by the remark of the presiding judge that he didnt propose to read the judgment. Raja Aziz Addruse stood up and asked Lamin whether what he heard from Lamin was indeed correct. The judge said yes. Anwar protested:
"Can Your Lordship give some semblance of the grounds of decision? It is pertinent that I be given some understanding as to how you came to a decision in a particularly high-profile case such as this.
"Let not the Court be a tool of the Executive, to legitimise political persecution. It is indeed very unfortunate."

Anwar lodged another appeal, this time to the countrys highest court, the Federal Court, whose current head is the Chief Justice of Malaysia, Tun Eusoff Chin. The hearing date for this appeal has not been fixed as of today.
The result of the Anwars first trial and appeal and the events surrounding them are a shocking indictment of the Malaysian judicial system!

Message: 17 Date: Wed, 30 Dec 1998 11:44:08 -0800
From: Baharom
Subject: No evidence Sukma sodomised

Got this email from my cousin. Good factual explanation. Plsrefer to the actual charges (tuduhan rasmi)and relate it to Dr Zahari's testimony yesterday. Pardon for the excessive use of the word "ass hole"but in the name of justice, it is warranted and called for.

==============================

Finally a topic I can address with some authority! Let's see how many times I can use my favorite "A" word gratuitously.... .

At yesterday's trial session, a pathologist Dr. Zahari Noor testified about his examination of Sukma's asshole (literal), and, based on his expertopinion, "no blunt" object passed through Sukma's asshole (literal) (i.e.,Sukma was not sodomized) .

This is based on:.

1. Looking for evidence of scars and bruises typical of a "used" asshole(literal).

2. Examining Sukma's private parts for similar signs.

3. Puttin' on dem cold rubber gloves and inserting his finger(s) up Sukma's asshole (literal) to test for "grip" - Yup, still stronggrip lah. .

Obviously this testimony is yet one out of many *facts* that point to the big conspiracy lie - so that asshole (figurative) Gani vehemently objected, claiming that it was irrelevant.

Of course, dear Gani, it is irrelevant when it suits you - but it was relevant when you introduced new "evidence" during RE-EXAMINATION through Azizan's "testimony" of having his asshole (literal) violated by BOTH *SUKMA* and Anwar..

To cover his ass (figurative), the asshole (figurative) Gani then tried to pull the same stunt he did with Azizan's backtracking ("what Imeant was*after* 1992...) and managed to get Dr. Zahari to agree that" penetrations" between 5 to 10 years ago would be difficult to detect. .

Yes, said the good doctor, isolated penetration incidents, but repeated (habitual) penetration of the asshole (literal) would still leave signs even that long......

A fact which did not register with our favorite media asshole (figurative) A.K.J., who demonstrated his "leanings" by putting a bold headline onthe page4 Anwar Trial Story that reads "Medical Examination cannot detect sodomy5 to10 years ago" .

Thank you assholes (figurative) Gani and Kadir Jasin. Now they'll try to weavea story about how Anwar sodomized Sukma 5 to 10 years ago.EXCEPT...Less we forget, The ONE and ONLY one charge of Anwar sodomizingSukma reads:.

*********************.

That you on one night in *APRIL 1998* at the Official DPM Residence at 47 Jalan Damansara, committed a carnal act against the order of nature with oneSukma Darmawan Saasmitatmadja.... .

**********************.

Yes, Anwar was charged with sodomizing Sukma as RECENT AS APRIL1998!.

When the good doctor examined Sukma's asshole barely 5 months after being sodomized,there was NO SIGN OF SODOMY! Now, I know I'm not supposed to say that the charge is fabricated because it would offend some logical purists... especially in this case,since there may still be a logical possibility: .

The only way Anwar can sodomize Sukma in1998 and not leave "stretchmarks" is if Anwar's penis is not larger than a matchstick! - Hey, logical possibility, right? Either that, or the above charge was a SIMPLE MISTAKE TYPO and should have read 1988 or something... ;-).

Still on the issue of assholes (both literal and figurative),why is it that Sukma was subjected to the obviously humiliating test of having his asshole (literal) introduced to Dr. Zahari's rubber-coated fingers, andAzizan NOT UNDERGOING A SIMILAR EXAMINATION - Recall both the asshole (figurative) Azizan's and compatriot asshole (figurative) SAC Musa Hassan's testimonies that AZIZAN WAS NOT SUBJECTED TO ANY MEDICAL EXAMINATION..

Why? Apparently because Azizan readily admitted (while waving the SurahYasin) to having his asshole (literal) violated by Anwar not less than15 times(that comes to about 3 times a month since these incidents were supposed to have occurred between May to Sept 1992 - fantastic!) - While Sukma tried todeny his grave sins....

Speaking of assholes (figurative), I nominate Judge AugustinePaul for the "Asshole (both literal and figurative) Of The Week" award, for not allowing any cross-examining questions on the blood-taking episode when it was the prosecution who introduced a witness who took Anwar's blood -Apparently in the judge's wisdom, Anwar's condition during the time of taking blood is not relevant and the results of the blood test are not relevant!.

Defence was only allowed to ask on the specific act of taking blood, not thecircumstances around it.... bullcrap!.

Ah, but I am also reminded by learned colleagues that Judge AugustinePaul is to be regarded in high esteem. You see, he is an authority on "Evidence" having written a book about it..

And obviously he must be a very,very,smart man because the Attorney-General had him promoted from Judicial Commissioner (read: high court judge on probation) in Melaka (incidently homestate of Mohtar himself) straight up to HIGH COURT in KUALA LUMPUR - .

Not just any highcourt, but CRIMINAL High court - which means he by-passed Civil,Corporate,and Special Powers. .

And his elevation was as recent as May 1998- from probationary judge to judge presiding over the criminal trial of the century -Three cheers for uber wunderkid Augustine! but at the end of it all, who am I, but your average asshole(figurative), to uestion the independence and wisdom of Malaysia's judiciary?.

I'm told this independence still exists - right up there where the sun don'tshine...

Wednesday April 25

Judge says ISA in national interest, quashes bid to free 5
K Kabilan and Tong Yee Siong

5:03pm, Wed: The High Court today rejected the habeas corpus application of five reformasi activists detained under the Internal Security Act (ISA) two weeks ago for allegedly planning to use militant means and violent street demonstrations to topple the government.

Justice Augustine Paul said the court had no jurisdiction to hear the matter as the arrests and the detention of the five were done in accordance with powers vested in the police through the controversial security law.

�The executive is the judge in the matter of preventive detentions. The judicial process is unsuitable for reaching decisions on national security,� said Paul in his 53-page judgment.

�It is therefore not the function of the court to act as a court of appeal for the discretionary decision of the executive (to arrest and detain) and to inquire into the grounds upon which they carried out the decision,� he added.

He said that the applicants had failed to show that their arrests and subsequent detention were done in bad faith.

Habeas corpus is a writ ordering prisoners to be brought before a court or judge to ascertain whether their detention is lawful. It is often applied for by lawyers for those held under the ISA, which allows detention without trial for a minimum of two years following an initial 60-day investigative period.

Paul added that the applicants have been arrested and detained in the exercise of valid power and in compliance of section 73 of the Act. He also said that the court cannot require the police to prove to the court their reasons for the arrest and detention of the five.

He said that the detention orders showed that the police officers concerned had applied proper consideration in authorising the detention.

Paul said that the police or the Home Affairs minister cannot be required to furnish facts relating to the reasons for the detention if such a disclosure was against national interest.

Court powerless

He added the court was powerless to make an objective assessment and evaluation on the reasons for the ISA arrests given by the Inspector General of Police (IGP) Norian Mai in an April 12 press statement.

�In first two paragraphs, the IGP referred to information relating to the involvement of the seven detained in activities that may endanger the security of the country. He went on to say that the police need to carry out a thorough investigation based on the information.�

�What then follows is a general description of the activities of the reformasi movement and it was general in nature,� he said adding the press statement did not contain an exhaustive and detailed disclosure on any of the allegations against those detained.

�It was only a partial disclosure and it is impossible for me to make an objective assessment and evaluation in order to ascertain whether the arrests and detentions were justified,� he said.

In his press statement made immediately after the arrests, Norian had said that the seven were detained for allegedly making plans to topple the government by organising mass demonstrations and using other �militant means�.

The defence team had asked the court to assess this statement and make a ruling that if there were sufficient evidence linking the seven to any militant action, they should then be charged in an open court.

The IGP then submitted an affidavit claiming that the police had �other reasons which could not be revealed� for the detention of the seven. This affidavit was subsequently accepted by the court.

Suhakam ticked off

Paul also dismissed the defence team�s argument that the police had acted in bad faith by not charging those detained in an open court.

Paul said that the arrest and detention of a person under the ISA was no indication of bad faith by the police.

�ISA is a law that deals with preventive detention and it has been recognised that in matters relating to preventive detention, the executive is the judge. The ISA is unquestionably not an ordinary regulatory legislation. Its object is to defend and uphold national interest,� he said.

He added that even the Federal Constitution provided that such a law was valid even though it was inconsistent with fundamental liberties assured in the constitution.

He also said that even the1948 Universal Declaration of Human Rights recognised that there can be restrictions in the exercise of a person�s rights and freedoms by laws relating to public order.

�ISA has the highest purpose and objective to serve. Though regarded by some as draconian, the law must be considered in this background,� said Paul.

Paul also commented on a press statement issued by the Human Rights Commission (Suhakam) denouncing the use of the ISA to detain the seven and asking them to be produced before the courts if there was sufficient evidence against them.

He said that it was inappropriate for Suhakam to make such a call as it amounted to an �unlawful interference with the lawful exercise of discretion by the police�.

�While I am convinced that Suhakam acts with the best of intentions, it must realise that it is of prime importance that issues are kept separate so as to not risk confusing the public and adding the proverbial oil to the fire,� he said.

He said that confusing the law in this case will only give false hopes to the detainees and their families.

�Frivolous, vexatious�

Touching on an application made by the defence team to disqualify him from hearing the matter, Paul said questioning his competence to hear the matter on account of his standing in the judicial hierarchy amounted to casting aspersions on the appointing authority, which was the Yang di-Pertuan Agong.

He said that it would have been a gross dereliction of his duty as a judge if he had disqualified himself from hearing the matter without any grounds.

He said that there were no connection to the �Black 14� gathering and his judgment on former deputy prime minister Anwar Ibrahim on April 14, 1999.

�Black 14 has nothing to do with the merits or demerits of the judgment that was delivered. The application to disqualify me was frivolous, vexatious and an abuse of the process of the court,� said Paul.

The five reformasi activists were arrested ahead of a planned gathering outside the Suhakam�s headquarters on April 14, the second anniversary of Anwar�s conviction and six-year jail sentence imposed on him by Paul on charges of corruption.

The five detainees filed their habeas corpus application two weeks ago. Since April 10, a total of nine reformasi activists have been arrested under the ISA by the police.

The five are Keadilan vice-president Tian Chua, party Youth leaders Mohd Ezam Mohd Nor and Saari Sungib, Free Anwar Campaign (Freeanwar.com) webmaster Raja Petra Raja Kamaruddin and social activist-cum-malaysiakini columnist Hishamuddin Rais

Similar applications on behalf of two others, Keadilan youth leaders N Gobalakrishnan and Abdul Ghani Haroon, who were nabbed outside Kuala Lumpur, are being heard at the Shah Alam High Court today.

Another Keadilan leader Dr Badrul Amin Baharom was detained last Friday while the party�s youth secretary, Lokman Adam was arrested early yesterday.