The Federal Court on Sept 15 rejected Anwar Ibrahim's application to review its own decision dismissing his appeal against his conviction on the corruption charges. What is most perplexing is the reasoning of Federal Court Judge Alauddin Mohd Sheriff.

He came to the conclusion that 'there was no fraud or suppression of evidence, and neither is there new evidence before the court which merits the court entertaining a reopening or rehearing of the case'.

In the light of what had transpired at the High Court trial before S Augustine Paul and the Federal Court decision in Zainur Zakaria's contempt case, Alauddin's conclusion is unsustainable.

In the course of the High Court trial, Anwar had made an application to Paul for an order to disqualify the chief prosecutors, Abdul Gani Patail and Azhar Mohamed, from further prosecuting the case on the grounds that they were actively involved in requesting his tennis partner S Nallakaruppan to fabricate evidence of sexual misconduct against him.

Nalla was then facing a charge under the Internal Security Act which carried a mandatory death sentence.

Gani had made the alleged request at a meeting on Oct 2, 1998 with Manjeet Singh Dhillon, Nalla's counsel. On Oct 12, 1998, Manjeet wrote a letter to the attorney-general complaining about Gani's conduct. Manjeet is the doyen of the Malaysian Bar and a former president of the Bar Council.

The crux of Manjeet's complaint, which formed the basis for Anwar's application to disqualify the two prosecutors, was what Gani had told him (Manjeet) at the meeting:

that Nallakaruppan was now facing the death sentence;

that there were other charges also under the ISA that he could prefer against Nalla but if they (the AG's Chambers) 'hanged him once' under the present charge what need would there be to charge him for anything else;

that in exchange for a reduction of the present charge to one under the Arms Act, Nalla would have to cooperate with them and give information against Anwar Ibrahim, specifically on matters concerning several married women. (Gani kept changing the number of women and finally agreed on five - three married and two unmarried.)

that he would expect Nalla to testify against Anwar in respect of these women.

Manjeet said he was shocked that Gani 'even had the gall to make such a suggestion'. He wrote to the AG thus:

'I do not approve of such extraction of evidence against anyone a man's life, or for that matter even his freedom, is not a tool for prosecution agencies to use as a bargaining chip. No jurisprudential system will condone such an act.

'It is blackmail and extortion of the highest culpability and my greatest disappointment is that a once independent agency that I worked with some 25 years ago and of which I have such satisfying memories has descended to such levels in the creation and collection of evidence.

'To use the death threat as a means to the extortion of evidence that is otherwise not there (why else make such a demand?) is unforgivable and surely must in itself be a crime, leave alone a sin, of the greatest magnitude.

'How far into your chambers the corruption has spread I cannot say but that you will have to stop it goes without saying.'

These are very serious charges, which if true, strike at the root of our criminal justice system. They were made to the attorney-general, in open court, and to the police. They remain unrebutted to this day.

Although all this evidence and charges were before Paul, he refused to hear and decide on Anwar's application to disqualify the prosecutors. Instead, he went for Zainur, Anwar's counsel who had filed the application, and convicted him for contempt of court and sentenced him to three month's imprisonment.

The matter went on appeal to the Court of Appeal, which, as expected, merely echoed Paul's decision.

There was an appeal then to the Federal Court. By the time the appeal came up for hearing, there was a new chief justice who encouraged public expectation that judicial independence would be restored under his leadership. Zainur won his appeal.

In their grounds of judgment, the judges came to some very important conclusions that should have had a critical bearing on Anwar's Sept 15 review application. They held that:

Anwar 'was justified, on a prima facie basis, in complaining that Gani's conduct at the meeting with Manjeet was a blatant attempt to coerce Nalla into fabricating evidence in order to prefer charges against him for other alleged sexual offences' (per Steve Shim Chief Justice, Sabah and Sarawak).

There was no evidence or explanation forthcoming from Gani to the satisfaction of the court to substantiate and/or verify the reasons to request information from Nalla. 'Consequently Gani's motives were questionable. Given this scenario, it was not unreasonable for Manjeet to conclude that the conduct of Gani at the meeting was an unadulterated attempt to extract and/or extort evidence " (per Steve Shim).

'The manner in which the contempt proceedings were conducted, the interrogation of the appellant (Zainur) in court and the speedy finding of guilt without allowance for the calling of witnesses indicated that the trial judge had overstepped his powers and appeared to act as counsel for the two prosecutors (per Abdul Malek Ahmad, Federal Court judge).

Having made these highly incriminating findings against the two prosecutors in Zainur's contempt case, one is unable to see the judicial logic behind the Sept 15 Federal Court decision on Anwar's application for review that '... there was no fraud or suppression of evidence' to merit reopening it.

But prima facie evidence of fraud was right there before the Federal Court judges in the statutory declaration of Manjeet and his letter of Oct 12, 1998 to the attorney-general.

It was Lord Denning, the great English judge, who once said that fraud unravels everything. There cannot be finality to a judgment tainted with fraud, even in civil cases - what more in a criminal case that involves the liberty of the individual!

The integrity of the High Court trial had been seriously compromised by the prosecutors' alleged attempt to fabricate evidence and the trial judge's attempt to protect them. How can we be sure that the prosecutors did not fabricate other evidence against Anwar or suppress evidence favourable to him?

This is not to suggest that they actually fabricated or suppressed evidence which we will never know unless a commission of inquiry with wide powers of investigation is set up to inquire into Anwar's complaint against them.

But when a big question mark hangs over the integrity of prosecutors - as in Anwar's case - it is highly dangerous to convict a person based on evidence produced by them.

The Federal Court had an excellent opportunity to remedy the serious failings of the High Court trial process, which attracted widespread criticism locally and from overseas. At the least, it should have ordered a retrial before a different judge and directed that the application to disqualify Gani and Azhar be heard and disposed of first.

Such a decision would have gone a long way towards improving the battered image of the judiciary. The Anwar saga will continue to haunt our judges for many more years to come. History will be the best judge of their decisions.