In a land renowned for its kangaroo courts and leap-frogging judges, the Year of the Monkey holds special significance for the judiciary.

For a start, after dilly-dallying for several months, the Court of Appeal consisting of justices Pajan Singh Gill, Richard Malanjum and Hashim Yusof ushered in the Chinese New Year by delivering a judgment that was 'historic' on many counts.

For the first time in Bolehland it took three judges of a Court of Appeal as long as nine months to deliver a verdict on a bail application which a solitary magistrate could normally dispose in nine minutes.

Public perception has been right all along - it was a case of how low, and how long, the judges could go in throwing a monkey wrench at the bail application of jailed ex-deputy premier Anwar Ibrahim.

Just as justice Augustine Paul gave a new nuance to the word 'irrelevant', the presiding judge of the Court of Appeal, Justice Pajan, provided new meaning to the term 'as soon as possible'.

In spite of the fact that the record delay was a breach of a directive that judgments be issued six weeks after the arguments have concluded, and Anwar's letters to him, the chief justice chose to remain silent.

The words of Abraham Lincoln seem so apt here: "To sin by silence when they should protest makes cowards of men." Again, what a stark contrast when compared to the proclamation of justice Edith Jones, (dissent in United States of America vs Mcfarland): "In this court ... silence is not our custom."

Theatrics and technicalities

Justice delayed is justice denied, so it seems. But in Malaysia, justices must not be denied their duty to delay. They stand tall - those who can stall.

Apart from Pajan's protracted procrastination, the varying speed with which he had displayed when coming to a decision, reduced the bail application hearing process to mere theatrics and a toying with technicalities.

He would in an instant dismiss Anwar's oral bail application (without giving any reason), on another instant call for a short recess for the court to consider defence lawyer Karpal Singh's insistence that he hears the oral application and 20 minutes later refuse to re-convene.

Tarrying on for nine long months and with no decision to show, Pajan would, after an outburst by Anwar over the delay, all of a sudden, declare that a decision on bail would be made in 48 hours.

History will remember how a Court of Appeal tried to make a monkey of this nation by making a basic bail application look so complicated.

Forget about Anwar's worsening health condition (which the court had trivialised over) and it being a special circumstance under which Anwar should be granted bail.

The fact was that Anwar was eligible for bail in normal circumstances. He was charged for sodomy which is a bailable offence. This point was clearly highlighted by his lawyers and also by the Human Rights Commission of Malaysia (Suhakam) on May 31, 2001:

"Suhakam notes that under ordinary circumstances, a person charged with the offences that DSAI (Datuk Seri Anwar Ibrahim) had been charged with could have been granted bail pending trial and appeal."

'Ordinary' case

From the very start, the powers-that-be and each judge involved in the Anwar trials had insisted that the case before them would be treated as a 'normal' or 'ordinary' case.

If Anwar's case is an 'ordinary' sodomy case then the 'ordinary' practice of granting bail to those accused or guilty of sodomy should apply. But the Anwar trials were nothing but political.

Anwar should have been granted bail just as a court had granted bail in 1987 to a man accused of sodomising a blind boy at St Nicholas School for the Blind in Penang.

In 1990, the accused was convicted, sentenced to five years jail, and ordered to be given nine strokes of the rotan. He appealed - and was granted bail again. There was none of the 'pre-conviction and post-conviction distinction for bail' gobbledegook as advanced by Pajan in his ruling.

Further, Anwar was entitled to bail for the same reason as the then High Court Justice Arifin Jaka had granted bail to Anwar's adopted brother Sukma Darmawan Sasmitaat Madja, who was jointly tried, convicted and sentenced.

Arifin had at the same time denied Anwar bail. This became a very glaring judicial 'inconsistency' and was highlighted by Anwar's lawyers to the Court of Appeal. Instead of granting Anwar bail, the court revoked Sukma's bail and ordered him to serve his sentence with immediate effect.

Such a highly irregular decision in a supposedly ordinary sodomy case surprised Suhakam chief Abu Talib Othman too: "the judges revoked bail for Sukma Darmawan in the absence of an application by the prosecution. Why are judges taking it upon themselves to do this?"

(Very many of us would also agree with Abu Talib who is of the opinion that "there were a couple of things which did not appear to be regular procedures" in the Anwar trials.)

Equally 'historic' was the unprecedented objection of the attorney-general (the main supporting actor in the nine-month judicial drama series) to a bail application.

"For the past 25 years, your lordships would know, having been in the private practice yourselves, that the court is known to grant bail both during trial and pending appeal. In fact, it is an exception for the court to refuse bail," Anwar's counsel Christopher Fernando told the Court of Appeal.

But as it has turned out, the court chose the exception in this ordinary sodomy case. The judiciary chose not to work 'for' the executive but 'with' the executive in keeping Anwar behind bars.

Nothing changes

What transpired in the Court of Appeal was both tragic and ironic. There were moments when it looked as though the prisoner of Sungai Buloh was the one holding court and the judges were on trial.

Added to the irony was the notice of alibi issue, especially when Karpal asked Pajan whether he had been informed of the alibi notice and the latter replied: "We have no recollection of it."

Pajan sounded so much like a reluctant or fearful witness or an evasive accused with a readied "I cannot remember" response. If the truth of the matter was to be ascertained and justice done, the most logical thing was for the judges to allow their notes to be referred to, which they refused.

Alas, written on the open notes of history will be this tragic episode of how injustice was done and seen to be done by the three judges of the Court of Appeal. Etched in their minds will be the memory of a man, who, suffering from a worsening spine problem, told them that they were "spineless".

The prime minister was right - nothing much would change after he takes over - it will be business as usual - and for the judiciary it will be monkey business as usual.

MARTIN JALLEH is a writer and researcher in a non-government organisation. Not affiliated to any political party, he believes that every Malaysian should care enough for his/her country by speaking up and standing up for the truth.