The grand finale of the long running Anwar Ibrahim trials came on Sept 15 when the Federal Court delivered its judgment on his application to review its own judgment (on corruption) dated July 7, 2002.
In a deeply flawed judgment, the panel of three judges unanimously rejected Anwar's application. With that, Anwar's last legal avenue to redress his corruption conviction is exhausted, which means he will be barred by law from holding any office for the next four years.
Only days ago (on Sept 9), millions of people in Malaysia and around the world were stunned and jubilated at the release of Anwar when the same Federal Court - under a different panel of three judges - unexpectedly overturned another conviction of Anwar (on sodomy).
This court decision then was hailed as a sign of revival of judicial independence under the new leadership of Prime Minister Abdullah Ahmad Badawi.
But with the latest Federal Court decision, it should be a sober reminder to all that reforms in this country is a long and arduous process. In fact, we are not even certain at this stage whether Abdullah's long promised reforms will take off the ground, judging from the tumultuous and fast unfolding events in the days that followed the release of Anwar.
In particular the tussle within Umno that saw remnants of the previous autocrats seemingly gaining the upper hand over the reform minded. But that subject would not come under the purview of this letter. For now, our attention is focussed on the Federal Court judgment.
The court's main grounds for rejecting Anwar's application are contained in Judge Alauddin Mohd Sheriff's judgment, to which the other two judges concurred.
Alauddin in his judgment has side-stepped many powerful and convincing points of arguments put up by Anwar in the first motion filed on Aug 9, 2002. These are facts and laws that point irresistibly to the fact that miscarriage of justice had occurred on multiple fronts under the trial judge, for which the Federal Court in its previous judgment on July 7, 2002 failed miserably to take into consideration.
By failing again to give appropriate judicial considerations to these issues this time, Alauddin's judgment is already fundamentally flawed on this score alone.
Alauddin's judgment mainly centres on the second and third motions filed in March 2003, which revolved around the issues of:
- the alleged fabrication of evidence by prosecutors and
- the dubious conduct of the trial judge and prosecutors as exhibited in the conviction of Zainur Zakaria for contempt of court for attempting to expose fabrication of evidence.
While not denying there were such fabrications of evidence (alleging Anwar of sexual misconduct), Alauddin upheld the previous contention that such evidence is irrelevant to the charge of corruption.
Alauddin said: ' it does not lend any weight against the charges as they were one of corruption and not relating to misconduct of women'.
This leads us to the vital question: Is Anwar's alleged sexual misconduct relevant in this trial? The trial judge said no. The Court of Appeal said no. The Federal Court said no. Now, Alauddin also said no.
Let us remind ourselves that Anwar is charged for abusing his power to cover up the scandal of his alleged sexual misconduct. Assuming there is no such misconduct, is there anything to cover up?
Wouldn't it be the height of stupidity on the part of Anwar to commit a crime just to cover up a scandal that is mere fiction? How would Anwar have benefited from such a cover-up if there was no such misconduct in the first place?
The obvious answer is that the allegation of an illegal cover-up cannot stand up to logic under such circumstances.
On the other hand, if Anwar did in fact indulge in sexual misconduct, then it is understandable that he may want to cover that up, in the course of which he may have abused his power.
So, it is plain common sense that the truth or falsity of the allegation of sexual misconduct is very much relevant. Not only that, evidence of sexual misconduct is a pre-requisite to the charge of abuse of power.
It is in recognition of this important fact that the prosecution spent almost its entire time in court building up a case of sexual misconduct. It was only upon the collapse of its carefully woven fabric of sexual misconduct towards the end of its case that the charges were abruptly amended to remove such sexual elements altogether.
In cohort with this illegal amendment of the charges by the prosecution, the trial judge had also, on his own initiative, illegally expunged all evidence relating to sexual misconduct while prohibiting all further submission on this issue.
Consequently, Anwar was deprived of the opportunity to wage his vital defence as well as to clear his reputation.
The trial judge's blunder in ruling sexual misconduct irrelevant and the series of decisions springing wherefrom are such serious fundamental flaws that Anwar's corruption conviction should have been overturned in the first instance. It is indeed inconceivable that so many senior judges should have erred alongside the trial judge on such an elementary issue of justice.
The Federal Court judges have therefore fatally erred in rejecting Anwar's application when they wrongly conceived the evidence of fabrication of sexual offences as irrelevant.
In the Federal Court judgment in June 2001 overturning the trial judge's conviction of Zakaria Zainur for contempt of court for attempting to expose fabrication of evidence by the prosecutors, we saw some of the severest attacks ever made against a trial judge.
Trial judge S Augustine Paul's conduct was so unreasonable and so overtly prejudiced against Zakaria that one of the three judges on the panel, Abdul Malek Ahmad, who was also on the Sept 15 panel, was prompted to say:
'The manner he conducted the proceedings, in particular the interrogation of the appellant and the speedy finding of guilt without even allowing the appellant to call any witness, gave the picture that he was behaving as though he was acting as counsel for the two prosecutors in the motion.'
As for the two prosecutors accused of fabricating evidence (who happen to be also the prosecutors opposing Anwar's Sept 15 application), the language of reprimand used by the judges were also unmistakably unequivocal.
The judges had practically implicated the trial judge as working in collusion with the prosecutors to fix up the appellant.
Against this backdrop, Alauddin on Sept 15 stuck to the court's earlier contention that its judgment on Zakaria appeal had no bearing on the Anwar trial because '... the facts and circumstances of Zainur Zakaria cannot be equated with the facts of the applicant's case'.
Alauddin also said: 'The court also retorted by saying that the conduct of the learned judge in Zainur Zakaria is not really relevant to the amended charges faced by the applicant. We would add by saying that the contempt proceedings is a separate proceedings altogether. It was only against Zainur Zakaaria and not the whole of the defence team. There is no nexus between the allegation of fabrication and the corruption appeal'.
Alauddin is, of course, right in saying that the contempt proceedings was a separate case, but he has erred in not having considered the intricate implications arising from the fact that the two cases are intimately related, one being the offshoot of the other.
Trial judge Paul had summarily convicted Zakaria for contempt to block the latter from spilling the beans on prosecutors fabricating evidence, which would have caused an implosion that would land the prosecutors in jail in addition to derailing the entire Anwar trial.
Besides, the fabrication of evidence would also lend credence to another Anwar defence - political conspiracy. Significantly, the latter was also unjustly ruled by the trial judge as irrelevant, for which many important defence witnesses had been improperly barred from giving evidence.
When Paul targeted Zakaria, the former was actually hitting the entire defence team, as Zakaria was merely acting as the presenter of documents, as there was evidence that the affidavit concerned was prepared by other the leading counsel.
In the same vein, Paul's ultimate object was not the defence team, but the appellant, whose conviction must apparently not be allowed to be derailed at any cost.
The Federal Court's harsh judgment against the trial judge and prosecutors in the Zakaria appeal is a virtual confirmation of the existence of male fide on the part of prosecution and improper partisanship on the part of the judge, with the recipient of these ill intentions none other than the appellant.
As the prosecutors and judge who convicted Zakaria for contempt were also conducting Anwar's corruption trial, how could anyone sensibly conclude that justice for the appellant would not be impaired?
Contrary to Alauddin's exertion, the continued conduct of the Anwar trial by these discredited prosecutors and trial judge has indeed resulted in serious miscarriage of justice, for which the Federal Court has once again, on Sept 15, failed to rectify.
It is noteworthy that the long trials of Anwar over the past six years have brought great shame and disrepute to this country, as their judgments have been roundly criticised as travesties of justice by all authoritative international jurist bodies, human rights organisations, the United Nations and governments of democracies such as EU nations, the United States, Australia etc.
It is of the greatest regret that upon the grand finale of the Anwar Ibrahim trial saga on Sept 15, our highest court should have forgone the golden opportunity of rectifying the previous wrongs in one stroke by finally administering justice according to the principles of law.
Executing such a righteous act when it is at the focus of the world would have dramatically redeemed its honour, at least partially, while at the same time averted permanent injury to the reputation of a fellow countryman.
After having followed the judgments of these Anwar trials closely over the past years, it is my belief that the low qualities of these judgments are not a reflection of a lack of intelligence, but of wanting in integrity and courage.
In fact the same ailment also afflicts our political and civil elite, whose leadership failure is intricately related to the prevalence of immorality and mediocrity amongst the populace at large.
It is hoped that, in spite of Anwar being barred from active politics in the coming years as a consequence (or cause?) of the Federal Court's mis-judgment, a freed Anwar could at least be a catalyst to the emergence of a better political balance that would work for the betterment of this