The inconsistency of the majority judgment of the Federal Court on Anwar Ibrahim's acquittal pointed out by Karpal Singh is disconcerting because it carries with it four disturbing implications.
The appellate trial judge found Anwar guilty of sodomy charge on 'one night in the month of January until and including the month of March 1993'.
Azizan Abu Bakar's testimony had discrepancies especially on the dates of the commission of the offence, but confusion, according to the trial judge, was not to be mistaken for lying.
Not so, the Federal Court said. The Federal Court, as an appellate court, has inherent jurisdiction pursuant to Section 87(3) of the Courts of Judicature Act 1964 to review the trial judge's decision and findings.
The Federal Court cited Sheo Swarup v King-Emperor AIR 1934 PC 227: 'This view of the trial judge as to the credibility of a witness must be given proper weight and consideration.
An appellate court should be slow in disturbing such finding of fact arrived at by the judges, who had the advantage of seeing and hearing the witness, unless there are substantial and compelling reasons for disagreeing with the finding.'
The Federal Court had found '... evidence to confirm that the appellants were involved in homosexual activities and we are more inclined to believe that the alleged incident at Tivoli Villa did happen' as the trial judge perceived.
However, the court still gave an acquittal because '... even if it is proved that the incident did happen but if it is not proved 'when', in law, that is not sufficient.
This is because the period during which the offence is alleged to have been committed is an essential part of the charge. It becomes even more important when the defence, as in this case, is that of alibi'.
Our Federal Court now appears to be saying: 'Never mind, although the offence was actually committed, it does not matter as long as you can't prove exactly when it happened'.
This emphasis on technicality of form (e.g. the precise date) over substance is startling when appellate courts should be adopting exactly the opposite stance in an appeal to do justice.
The important question is whether - on evidence - the person is guilty of the offence charged. If there were evidence that he was, why should he be acquitted merely because there was an error as to exact date of the offence either due to memory lapses or prosecution incompetence to pin point the exact date?
He did it, didn't he?
The first implication of the Federal Court decision appears to be this - procedure of date is more important than substance of commission of an offence and that one cannot convict an offender even when there is sufficient evidence if the prosecution fails to mention or prove the exact date of offence.
No wonder, and in the interest of consistency, the Court of Appeal on Sept 6 freed a janitor serving seven years for raping his daughter stating that the dates of the offences in the charge sheets must be specific.
This prompted women groups to express grave concern that many rapists and incest perpetrators would get off scot-free because rape victims often cannot remember specific dates of sexual crimes.
What about those already serving long sentences for sexual offences where specific dates of the offence were not a requirement? Was there a miscarriage of justice in these cases, and if so, should more of these sex offenders be freed
This is the second implication which concerns how the emphasis on technicality of date will undermine efforts to bring sex offenders in the future to book in times of rising sex crimes, and how it will affect past convictions, and whether they should be now overturned and prisoners freed if their convictions were found to be grounded on unspecific dates.
The third implication relates to the confession of Sukma Darmawan Sasmitaat Madja, Anwar's co-accused. In support of Anwar's acquittal, Sukma's confession to sodomy, accepted by the trial judge, was considered by the Federal Court as inadmissible in evidence.
The Federal Court took cognisance of the suspicious and unusual circumstances surrounding the making of the confession coming after 10 days of intensive interrogation and 12 days of detention, and doubted the voluntariness of making it (for such a confession to be admitted in evidence).
In not believing the voluntariness of the confession, the Federal Court obviously lent credence to Sukma's testimony that he was humiliated, abused and coerced by police interrogators into making the confession, which is an indirect indictment of the investigating methods of our police force.
The fourth implication is Anwar's acquittal itself. His lawyer Karpal stressed that 'the judge's earlier remark was untenable as it flies in the face of the decision to acquit and discharge both Anwar and co-accused Sukma'.
Karpal should know that in pointing out the inconsistency of reasoning in the Federal Court's judgment, it could cut the other way, meaning that in the face of evidence of sodomy being committed, the Federal Court wrongly and ought not to have acquitted both Anwar and co-accused Sukma based merely on dates of offence not being specific.
This being so, the attorney-general should now file an appeal for another sitting of the Federal Court to review the first's sitting's consistency of reasoning.
Karpal should know that his allegation has wide implications on the perception of judicial independence.
As a concept, the judiciary's independence, and the notion that justice is done, can no more be supported by conviction at trial level based on irregularities of evidence, as an acquittal at appellate level based on inconsistency of judges' reasoning.