According to the Federal Court, three weeks have been allocated to hear the crucial appeal by jailed former deputy prime minister Anwar Ibrahim and his adopted brother, Sukma Darmawan Sasmitaat Madja. However, hearings - which began on Monday - will not be held for the three days - May 18, 24 and 25.

Defence lawyer Karpal Singh started the morning's session (yesterday) by touching on the conflict of interest of the trial judge Arifin Jaka, who originally heard the sodomy case four years ago in the High Court.

Karpal said that the judge was a business partner of one of ex-prime minister Dr Mahathir Mohamad's sons, Mirzan. According to Karpal, Arifin had a substantial number of shares in Mirzan's software development company, Dataprep. Because of this, the defence had asked the judge to recuse or disqualify himself on grounds of conflict of interest. Arifin, however, had refused to do so.

Karpal cited examples of other cases where judges had recused on lesser grounds than this and whenever the judge's impartiality had been questioned, or if there is even a likelihood he may be seen as biased, the judge had disqualified himself from hearing the case.

Karpal related how the defence had subpoenaed Mahathir to testify in court but Arifin had blocked the move and commented that the then PM would not be able to offer any material evidence. Karpal told the court he had asked the judge how he could put himself in the PM's shoes and know what Mahathir was going to testify even before hearing his testimony.

The trial judge, contended Karpal, went out of his way to protect Mahathir by blocking all moves by the defence to drag him to court to testify in Anwar's trials.

Azizan's contradictory testimonies

The leading member of the defence team, Christopher Fernando, then took over and told the court this is the first time in Malaysian judicial history that anyone had been convicted of a crime of sodomy when the alleged victim testified under oath, not once, but three times, that he was never sodomised by the accused.

Fernando also told the court to take special note of the fact that the charges against Anwar and Sukma were amended twice. Further to note, argued Fernando, was that the two accused were asked to prove they did not commit the sodomy act one night in a period of three months, six years ago.

Fernando argued that Anwar was placed in a most unfair position in having to prove his innocence by providing an alibi for a period of three months. One cannot even remember what one had for lunch last Thursday, stressed Fernando, let alone what one did six years ago.

Fernando informed the court that Anwar is a victim of a political conspiracy. The evidence of the prosecution's key witness, Azizan Abu Bakar, was never corroborated and his testimony was full of contradictions and outright lies. The credibility of Azizan, the alleged victim of the sodomy act, is suspect.

Fernando then read through the lengthy transcripts of the trial to demonstrate Azizan's contradicting testimony at many points along the way. But all these contradictions and discrepancies were not taken into consideration by both the trial judge as well as the Court of Appeal.

Fernando continued taking the court through the trial transcripts and argued that these rampant contradictions should have alerted the court that the charges against Anwar were fabricated. In fact, Azizan not only admitted that Anwar never sodomised him but also that he had been coached by the police as to what to say. Azizan's entire testimony was based on what the police had told him to say and he had even named the police officer concerned, then senior assistant commissioner Musa Hasan, now criminal investigation department chief.

Solid as the Rock of Gibraltar

At this point, said Fernando, attorney-general Abdul Gani Patail tried to block Azizan's most damaging testimony and disallowed it from being recorded lest it exposed the conspiracy and the fabricated charges against Anwar.

Even the trial judge Arifin ( left ), argued Fernando, was so critical of Azizan and had commented on his unreliability. Yet, when he delivered his judgment, he ruled that Azizan is a credible, honest and trustworthy witness whose testimony is as strong as the Rock of Gibraltar.

Fernando said the defence had wanted to launch impeachment proceedings against Azizan but the AG - the person who is leading the prosecution - had blocked the move.

Fernando then read the transcripts of the re-examination of the witness by the AG that showed how unfair and unethical the AG was in going against all the rules of evidence.

Fernando cited examples where the AG had put words into Azizan's mouth and got him to change his testimony though this is not allowed under the rules of re-examination. The defence had protested about this violation but the judge overruled the objection.

Fernando then continued reading through the transcript of the trial with regards to Azizan's contradicting testimony. In spite of these glaring contradictions, said Fernando, the judge still considered Azizan a credible, honest and trustworthy witness whose testimony can be accepted beyond any reasonable doubt.

Fernando said that there is absolutely no doubt Azizan is an unreliable and untrustworthy witness, and an unmitigated liar. Anwar and his adopted brother Sukma should be acquitted of all charges, added Fernando.

Charges vague and imprecise

After lunch, Fernando continued his submissions by returning to the issue that the charges preferred against Anwar and Sukma were vague and imprecise. Anwar and Sukma were asked to defend themselves against a crime they were alleged to have committed one day in three months, six years ago.

Fernando argued that as the then deputy prime minister, Anwar, as well as the then prime minister, are constantly followed for their own protection and security. In fact, all the PM's and DPM's movements, at all times, are recorded.

Fernando told the court the AG himself had admitted that they have complete records and full details of Anwar's entire movements from the day he became the DPM till the day he was sacked on Sept 2, 1998.

Why then, asked Fernando, was the charge against Anwar so vague? Why could they not pinpoint the specific date of the alleged crime instead of leaving it so vague - one night in three months in 1993?

The bottom line is, Anwar and Sukma should not have even been put on trial and be required to defend themselves, let alone be found guilty of the alleged crime of sodomy.

Fernando reminded the court that the onus is on the prosecution to prove Anwar's guilt. Instead, Anwar and Sukma were made to prove their innocence. In his judgment, the trial judge ruled that Anwar did not satisfy the court by proving his innocence whereas all Anwar was required to do was to raise a reasonable doubt. And this Anwar had successfully done. This goes against the whole principle of the law and the trial judge had totally misdirected himself.

Star witness fails tests

Fernando then spoke about the issue of corroboration. A witness, said Fernando, must be given the double test. First of all, he must be a credible and reliable witness. If he is, then there must be tangible corroborating evidence to support his testimony. If he is not, then the matter ends there. His entire testimony must be rejected and no further evidence is required to corroborate his testimony.

In Azizan's case, he has failed both tests. Not only was there no corroborating evidence to support his testimony but his entire testimony was unreliable as well. Azizan was the prosecution's key witness. Instead of strengthening the prosecution's case, he in fact had demolished it. If Azizan's testimony were to be rejected, the prosecution had entirely no case against Anwar and Sukma.

The prerequisite to a fair trial is not only a fair judge but a fair prosecutor as well, stressed Fernando. In the Anwar trial, the prosecutor - attorney-general Abdul Gani - was clearly tainted as he had attempted to blackmail witnesses while attempts were made to bribe witnesses, both within and outside Malaysia. Fernando then cited the various cases involved that had earlier been raised during the trial.

It is proven, beyond any shadow of doubt, summed up Fernando, that the charges against Anwar were clearly fabricated.

The hearing will continue on Thursday at 9am.

First two days of Anwar's appeal hearing

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