The Federal Court appeal hearing continued on the fourth day with Anwar Ibrahim's lead counsel, Christopher Fernando, informing the court that the trial judge who heard the jailed ex-deputy prime minister's sodomy case four years ago had blundered all along the way.

Basic and fundamental rules of law were not complied with, said Fernando. Whenever there was a benefit of the doubt, it was given to the prosecution instead of to the defence.

Fernando said the Court of Appeal, which reviewed the case last year, had equally erred in upholding the trial judge's verdict.

Fernando then read the transcripts of the trial which showed that the trial judge had fully accepted the testimony of Azizan Abu Bakar - the prosecution's key witness - in spite of the fact he had perjured himself many times. Fernando argued that not only should his testimony have been rejected outright, but Azizan should also have been cited for perjury.

This, argued Fernando, was a serious misdirection on the part of the trial judge, Arifin Jaka.

Further to that, Anwar and his adopted brother, Sukma Darmawan Sasmitaat Madja, were made to prove their innocence, whereas it ought to have been the prosecution instead that should prove their guilt. All Anwar and Sukma had to do was raise a reasonable doubt and this they had successfully done, explained Fernando. Yet the trial judge said they had not been able to do so.

The issue of the many attempts to fabricate evidence against Anwar was again raised. Fernando brought up the issue of Jamal Abder Rahman, mentioned earlier in his submission yesterday. Jamal, said Fernando, had made serious allegations against Mustapha Ong, a Malaysian diplomat, who had tried to fabricate evidence against Anwar. In spite of such serious allegations, the prosecution failed to subpoena Mustapha and bring him to court to rebut the allegations whereas the onus was on them to do so.

And this was the case with other witnesses as well. Many defence witnesses had come to court to testify that there undoubtedly existed a conspiracy to frame Anwar on trumped-up accusations of sexual misconduct. Fernando then cited examples such as the testimonies of Raja Kamaruddin Raja Wahid, Azmin Ali, and so on. The prosecution, however, failed to produce any of its own witnesses to rebut these allegations.

Azizan a person of high morals?

At numerous times, the judge was in error and misdirected himself, argued Fernando. In fact, even just one such mistakes would be sufficient to nullify the proceedings. Fernando read the trial judge's written judgment where he said the defence had not established the truth. Fernando reminded the court it is not the defence's job to do so as all it needs to do is to merely raise reasonable doubt. On this one point alone, the judge's verdict should be overturned.

Fernando said on the issue of the credibility of the prosecution's key witness Azizan, when asked why it took him five years before coming forward to allege Anwar had sodomised him, he said that he did so for the sake of his dignity and religion.

Azizan was portraying himself as a person of high morals, said Fernando. Yet, during the course of the trial, he was arrested, charged, and convicted of close proximity ( khalwat ), which proves he is not what he tries to portray himself as. Yet, this was never considered by the court.

In short, interrupted Federal Court justice Abdul Hamid Mohamad, "what you are trying to say is Azizan is not a credible witness". Fernando confirmed so.

The trial judge, Arifin, had abdicated his judicial responsibility, argued Fernando. He was neither fair nor impartial. The judge rejected all the testimonies of the defence witnesses as unreliable and the testimonies of the prosecution witnesses as reliable, though they perjured themselves.

The judge practiced double standards, added Fernando. He blocked the defence from calling witnesses, including the then prime minister Dr Mahathir Mohamad.

The duty of a judge is to dispense justice. However, said Fernando, Anwar's trial judge dispensed with justice. He did not uphold the tenets of the law.

The Federal Court has to restore the dignity of the courts by acquitting Anwar of the charge of sodomy, argued Fernando.

Fabricating evidence

Fernando then brought up the Manjit Singh Dhillon case - the lawyer who accused Anwar's prosecutors of seeking to fabricate evidence against the ex-DPM - and briefed the court on the background of the incident.

Fernando told the court he wonders how many other prosecution witnesses were similarly coerced, blackmailed or bribed into fabricating evidence against Anwar. It is shocking that the attorney-general could resort to such a tactic, said Fernando.

Fernando then read out the contents of Manjit's letter to the then AG (now deceased after lingering in an almost one-year coma following a stroke) complaining about the criminal conduct of the present AG (then the chief prosecutor) in attempting to fabricate evidence against Anwar.

A prerequisite to a fair trial is not only a fair judge but also a fair prosecution. Until today, the AG and the prosecutors have not come out into the open to rebut this most serious allegation, explained Fernando. They should have been disqualified or recused themselves from prosecuting Anwar as they have a hidden agenda to fix him.

Fernando informed the court that when this evil deed was exposed, one of Anwar's lawyers, Zainur Zakaria, applied for the prosecutors to be disqualified but was instead cited for contempt and slapped with a two-month jail sentence.

Their continued involvement in the case contaminated the proceedings, argued Fernando.

Zainur Zakaria was eventually acquitted by the Federal Court and in its judgment said that the trial judge had indeed acted like a prosecutor.

Fernando ended his submission by saying that the defence had raised many instances of misdirection by the trial judge. The Court of Appeal, however, overlooked all this. Amongst the crucial issues - where even just one is enough to acquit Anwar without the necessity of calling his defence - are:

1) The credibility of the prosecution's key witness.

2) The inconsistency of the prosecution's key witness' testimony.

3) The fabrication of evidence against Anwar.

4) The onus being placed on the defence in proving Anwar's and Sukma's innocence.

5) The AG and prosecutors not disqualifying themselves from the case.

6) The trial judge blocking the defence from calling witnesses.

7) The complainant retracting his allegation of sodomy against Anwar.

Fernando completed his submissions around noon after which Sukma's lawyer, Gobind Singh, took over for the rest of the day to present his submissions. Gobind explained that he would be taking the court through the same issues already argued by the Anwar's counsels.

Day Three of the Anwar Ibrahim appeal hearing

First two days of Anwar's appeal hearing

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