On Monday, the first day of the crucial Federal Court appeal, jailed deputy prime minister Anwar Ibrahim's solicitors had requested a five-member panel of judges but this was turned down by the court.

Lead defence counsel Christopher Fernando started the proceedings by telling the court that they were objecting to the panel of judges on grounds that Federal Court justice Abdul Hamid Mohamad may be biased and may not be able to give Anwar an impartial hearing.

Abdul Hamid had once presided over a case in the High Court where a Negeri Sembilan state assemblyman, Waad Mansof, was charged and tried for corruption under Ordinance 22, the same provision of the law in which Anwar had been charged on his first conviction.

Waad, however, was only slapped with a fine though his crime involved a substantial monetary gain. Anwar, on the other hand, was given a six-year jail sentence though his alleged crime did not involve any monetary gain.

The prosecution was most unhappy with the slap-on-the-wrist sentence handed down on Waad and they protested citing the Anwar case as justification for asking for a heavier sentence to be imposed on Waad. Abdul Hamid, on defending his light sentence given to Waad, argued that Anwar's case involved national security and public order while Waad's was a simple case of corruption.

Seeing that Abdul Hamid had already prejudged Anwar even before hearing the case, the defence argued that he should recuse or disqualify himself from hearing the case. "Justice must not only be done, it must also manifestly and undoubtedly be seen to be done," argued Fernando. He added that in the present circumstances, there are doubts whether Anwar will receive justice seeing that the judges have prejudged him.

In response, Abdul Hamid asked Fernando whether it is not true Anwar's case involved national security and public order?

Junior judges

Further to that, the defence also argued that the three-member panel of judges are all very junior and it would not be appropriate for them to review a case heard earlier by more senior judges.

There are two other qualified judges in the Federal Court who are more senior to Abdul Hamid while Rahmah Hussain is way down on the seniority list. Both were elevated from the Court of Appeal last July.

Meanwhile, Tengku Baharuddin is not even a Federal Court judge. He is from the Court of Appeal, and like his two other colleagues, received his promotion last July.

The defence argued that Tengku Baharuddin, in light of his extremely junior position, too should recuse or withdraw himself to allow other more suited and senior judges to hear the case.

Attorney-General Abdul Gani Patail, in replying to Fernando's arguments, said that Waad's case is a simple case of "not leaving the room" when a meeting he was chairing to consider a matter financially beneficial to him was being held. In a way, there was no actual crime.

This explanation almost had the public gallery in stitches. This is the same man who at one time recommended that the International Trade and Industry Minister, Rafidah Aziz, be indicted for corruption "for not leaving the room" when a meeting she chaired deliberated on some shares that were supposed to be allocated to her son-in-law.

Then, he thought it was criminal enough to press charges against the minister and it was only the intervention of the then prime minister, Dr Mahathir Mohamad, which saved Rafidah from being charged in court.

Judges refuse to withdraw

The three-member bench then adjourned to deliberate on the matter but when the court reconvened after lunch, Fernando was told they would not withdraw or disqualify themselves from hearing the case.

Maybe they already have preconceived notions about Anwar's case, they explained, but they could still change their minds after hearing the evidence. In other words, what the judges are saying is, never mind if we already think Anwar is guilty. Convince us otherwise.

Outraged at this apparent pigheaded stand by the judges, Anwar stood up and said that if the judges refused to withdraw then he would instead do so. He would withdraw his appeal and would have nothing more to do with these judges.

"I am considering to withdraw the appeal as I have no confidence with the judges who are to hear my appeal. I see no point in continuing these proceedings. Your Lordships surely understand my predicament, as my counsel's arguments were not even properly addressed. What we are saying is that why more senior and qualified Federal Court judges were ignored," Anwar shouted from the dock.

Abdul Hamid tried cutting Anwar short and told him to address his lawyers and let his lawyers instead relay his decision to the bench.

But Anwar would not be silenced and he continued, "It is a foregone conclusion. It is a facade. There is not going to be a fair trial."

When Anwar refused to clam up, the court adjourned to allow Anwar some time to confer with his lawyers. When the court reconvened, Fernando told the court that they have managed to persuade Anwar not to withdraw his appeal and to go on with the hearing.

Alibi notice

Defence counsel Karpal Singh then took over and argued on a point he felt was most crucial to the case, and this is the notice of alibi, which is a statutory requirement under Section 402A of the Criminal Procedure Code.

It is mandatory that this notice be filed 10 days before the trial and the court is obligated to allow an adjournment to enable it to be filed. The High Court trial judge then, however, refused to allow the adjournment.

Nevertheless, the defence argued that the notice of alibi had been filed. Yet the trial judge denied receiving it though. Affidavits were submitted as proof it was filed and the prosecution too admitted they had been served a copy of the notice, which the prosecution believes the court too received a copy.

Abdul Hamid then asked Karpal what difference it made and in what way it would effect the decision of the court? Karpal explained that the court's judgment was made based on the fact that no notice of alibi was filed so it certainly has a strong bearing on the verdict and is therefore a crucial issue.

The court then adjourned. It will reconvene today when the issue of the notice of alibi will be considered and whether there is any serious error on the part of the trial judge plus the Court of Appeal in overlooking the fact that it had in fact been filed, thereby rendering the court's decision defective.

Day two

Day two kicked off with the attorney-general, Abdul Gani, reading out the notes of the previous trial with regards to Anwar's alibi.

The AG then confirmed that the notice of alibi was in fact filed and a copy served on the court within 10 days by both Anwar and the second defendant, Anwar's adopted brother, Sukma Darmawan Sasmitaat Madja, as required under Section 402A of the Criminal Procedure Code.

Fernando then stood up to request that the attendance of the foreign observers and representatives from the Malaysian Bar Council be noted and recorded. Justice Abdul Hamid, however, rejected the request. After all, many parties, including God, are watching Anwar's hearing so should the court then record the presence of all these observers as well?

Karpal then asked the court whether it knows why Anwar's hearing is being closely followed by so many observers. This, said Karpal, is because Anwar's previous trials were rife with "weird and bizarre events". He said there was a high element of mala fide in the manner the prosecution was pursued and the conviction secured.

Karpal read out the written judgment of the Court of Appeal where in many sections of the judgment it refers to the fact that no notice of alibi was filed nor did the defence request time to file one.

He argued that this was a serious misdirection on the part of the court. The AG was fully aware the court had erred but did not correct this by bringing the matter to the court's attention. This spells of bad intentions or mala fide on the part of the AG. The AG was not prosecuting but was persecuting Anwar, argued Karpal.

Charges amended twice

Karpal read from the notes of the trial where the AG had amended the charges with regards to the dates Anwar allegedly committed the sodomy offence.

The original charge stated that Anwar sodomised Azizan Abu Bakar one night in May 1994. However, it was later changed to one night in September 1992 after prosecutors realised that the newly built condominium where the alleged event took place was not ready for occupation at that time. The date was again change for the second time to "sometime between January and March 1993."

The AG had told the court that the earlier notice of alibi which was filed for the original charge was sufficient and no postponement was required to file a new notice. Karpal then argued that Anwar's alibi filed was in relation to the old dates and not the new dates, which means if he did not file a new notice of alibi, he would have no defence.

Though the AG objected to the postponement and the court denied the defence the obligatory postponement, the notice of alibi was indeed filed. The High Court trial judge, nevertheless, arrived at a verdict taking into consideration the absence of this alibi. The Court of Appeal ignored this point and the AG did not correct this misdirection though it knew the court was in error.

The judges of both the High Court as well as the Court of Appeal were in error as the alibi is an essential part of the defence, stressed Karpal.

Karpal added that though the prosecution admits a notice of alibi had been filed, this is only in relation to the original charge and does not cover the amended charge where the dates of the alleged crime have been changed and the alibi would now not cover these new dates.

The notice had not been filed because the court refused to allow a postponement to file it. Yet, the court found Anwar guilty on grounds he did not file an alibi whereas it was the court that prevented it from being filed.

The second point raised by Karpal is the long delay in time before the alleged victim of the sodomy act made his complaint against Anwar. The alleged act occurred in 1992. Yet it was not until 1998 that Azizan complained to the then prime minister Mahathir. However, there was no valid explanation to this delay other than he was afraid.

A lot of strange things have happened in Anwar's trials, said Karpal.

Bail later

After lunch, Karpal asked the court to grant Anwar and Sukma bail . The court, however, said that this would complicate matters if the defence applies for bail halfway through the hearing and it would be better if it were done at the end of the submissions when the court has had a chance to hear the entire arguments, plus the reply by the prosecution.

Karpal then continued by bringing up the matter of the charge against Anwar that was amended twice. Anwar was first charged in the Kuala Lumpur Sessions Court for sodomy. His case was then transferred from the Sessions Court to the Kuala Lumpur High Court where the charge was then amended.

Karpal argued that the charge should not have been amended by the High Court but should have instead been sent back to the Sessions Court for amending.

Hearing to continue on Wednesday at 9am.

RAJA PETRA KAMARUDIN, a former journalist, is coordinator of Free Anwar Campaign .