FAC News - Wednesday, April 2, 2003 11:34 AM

Day five of the Anwar Ibrahim appeal hearing

Anwar could have been acquitted if the judge had not violated the law

The fifth day of Anwar Ibrahim’s appeal hearing at the Kuala Lumpur Appeal Court was argued by two of Anwar’s counsels, Gobind Singh Deo and Jagdeev Singh Deo, sons of Karpal Singh.

Gobind informed the court he would be raising four main issues;

1. Impeachment proceedings that should have been instituted against the prosecution’s star witness, also the alleged victim of the sodomy act, Azizan Abu Bakar, who perjured himself during the entire course of the trial.

2. The credibility of Azizan on whose testimony the entire case rested.

3. Anwar’s alibi that proved Anwar’s whereabouts plus proved it was impossible for him to have been at the scene of the crime, Tivoli Villa, the entire 90 days between 1 January and 31 March 1993.

4. The need to prove a Prime Facie case against Anwar which the prosecution had not.

Azizan, on many occasions, contradicted himself, not only while giving testimony under oath, but on five different occasions between August 1997 and June 1999 while his statement was being recorded by the police under Section 122 of the Criminal Procedure Act.

Under this section of the code, a person whose statement is being recorded:

1. Must answer all questions posed to him. (He/she cannot refuse to answer any question).

2. Must tell the truth. (He/she cannot lie).

3. Anything he/she says can be used against him/her. (Including the possibility of being cited for perjury if he/she lies).

Because of these contradictions, which the defence argued, “A witness who constantly changes his stand means he is lying,” the trial judge was asked to impeach Azizan and to cite him for perjury.

However, the judge ruled he would consider impeachment proceedings only at the end of the case for the Prosecution, then, at the end of it all, the judge declared that Azizan’s testimony was ‘as strong as the Rock of Gibraltar’.

In making this ruling, the judge just took some of the inconsistent statements Azizan had made then said that Azizan had satisfactorily explained the inconsistencies.

“Under Section 145 of the Evidence Act, the evidence of a witness about to be impeached must be taken as a whole,” argued Gobind.

“The trial judge was aware of this requirement. Yet he suggests he had complied with this principle.”

On 6 September 1999, both the Prosecution and the Defence had agreed to the impeachment proceedings. Then, on 7 September, the judge ruled that Azizan’s consistencies had been explained.

“The judge, however, made this ruling before the end of the Prosecution’s case.”

In justifying this, the judge said, “I have considered the testimony of Azizan earlier.”

The judge said he found Azizan to be a credible witness and that his credit was safe. But this ruling was made before the close of the Prosecution’s case.

“The judge should have deferred judgment until he had heard all the submissions, which should have been at the end of the trial,” argued Gobind.

The judge was adamant that Azizan was credible and an honest witness even before he could hear the end of the trial. “He had already pre-decided that Azizan is truthful before he could even hear the end.”

“The judge said he did not find any contradictions between what Azizan said in the first trial and what he said in the second trial. Even if there are, said the judge, Azizan has successfully explained these contradictions.”

“The judge said, “Azizan is a truthful witness both in fact and substance”.”

“The judge made this ruling even before hearing the witness out. The judge should have considered the prosecution’s entire case.”

The court was then told that, on one occasion, Azizan said he was never sodomised between 1992 and 1997. Then he said he was never sodomised between September 1992 and 1997. Then he said he was sodomised between 1 January 1993 and March 1993. Finally, he said he meant he was sodomised after May 1992; that it did not happen in Anwar’s house but in the Tivoli Villa.

“The prosecution’s entire case against Dato Seri Anwar rested on Azizan’s sole testimony. It is crucial therefore that the credibility of Azizan be established.”

“The judge, however, blocked this by not following the proper procedure.”

“The judge himself declared that, “This witness is very evasive. He cannot even answer simple questions”.”

“The judge knew Azizan was not reliable and said so. Yet he ruled that Azizan was a credible witness and did not want to impeach him for perjury.”

“The judge misdirected himself and the Appeal Court should now correct this,” said Gobind.

“The contradictions were very clear,” argued Gobind.

“Azizan said, from 1992 to 1997 he continued going to Anwar’s house because, after 1992, it never happened anymore.”

“Then Azizan said he was sodomised in Anwar’s house, but changed his story and said he was not sodomised in the house but in Tivoli Villa instead.”

“Then he testified he ‘did not have any problems’ with Dato Seri Anwar between 1992 and 1997.”

“Then, in answer to a general question, Azizan said he was never sodomised at all after 1992.”

Yet, the date on Anwar’s charge said he had sodomised Azizan from 1 January to 31 March 1993.

“The investigation officer was asked the basis of the date on the first charge that Dato Seri Anwar had sodomised Azizan in May 1992. Was it based on Azizan’s testimony in court (in December 1998)?”

“The investigation officer replied in the negative and said that it was based on ‘other statements’; two statements Azizan made (earlier) in July and October 1998.”

“However, on 7 December 1998, Azizan said he was never sodomised after September 1992 and that he had no problems with Dato Seri Anwar.”

“Then he said if he was asked ‘specifically’, he would have said the sodomy act still occurred between January and March 1993.”

“This is a fundamental departure from proper procedure in impeachment proceedings. The judge precluded himself from considering crucial evidence favourable to the defence. If not, Dato Seri Anwar and Sukma would have been acquitted.”