It is a fallacy to interpret the recent acquittals of Dato’ Seri Anwar Bin Ibrahim (“Anwar”) and Sukma Darmawan Sasmitaat Madja (“Sukma”) by the Federal Court on sodomy charges as a return to independence of the judiciary in Malaysia. In fact, it would be dangerous to do so.
Anwar was charged for sodomising Azizan Bin Abu Bakar (“Azizan”) on one night between the months of January and March 1993 at Tivoli Villa. Sukma was charged with two offences, ie, for abetting Anwar’s act with Azizan and for sodomising Azizan on that same night. Anwar and Sukma were tried jointly. They were convicted by the High Court (“the sodomy trial”)1 . Anwar was sentenced to 9 years’ imprisonment, such sentence to run consecutively after the expiry of his sentence of 6 years’ imprisonment for corrupt practices (“the corruption trial”)2. Sukma was sentenced to 6 years’ imprisonment and 2 strokes of the whip for each of the 2 charges. However, his sentences of imprisonment were to run concurrently. This decision was subsequently affirmed by the Court of Appeal3.
The Federal Court on 2 September 2004 decided, by a majority of 2–1, to set aside the convictions arrived at in the the sodomy trial4. Abdul Hamid Bin Haji Mohamad FCJ and Tengku Baharudin Shah Tengku Mahmud JCA formed the majority judgment. Rahmah Bt Hussain FCJ was in the minority. The majority said that this case was “different from any other case that we know of”5. They also commented that there seemed “to be so many unusual things that happened regarding the arrest and the confession” of Sukma6.
Since 7 June 1999 when the sodomy trial began, many ordinary Malaysians who followed the case also felt the same way. That is some 5 years ago. They too voiced the opinion that the case was unusual and were disturbed by the decision to convict Anwar and Sukma. Some of the disturbing features of the case are as follows:
In the sodomy trial, Azizan repeatedly contradicted himself. For example, in respect of the date of the alleged incident. The prosecution amended the charges twice in attempts to “fit” the facts to Azizan’s testimony. The original charge had the date down as “one night in the month of May 1994”. It was then amended to “one night in the month of May 1992” and subsequently to “between the months of January and March 1993”. The date of the offence was an essential element of the charges and the Federal Court in allowing the appeal had this to say7:
Sukma was abused, cruelly treated and tortured into making a confession to a Magistrate. He agreed to make a confession on the 12th day of his detention upon being told that he would be released after making a confession. He confessed to, among others, committing acts of sodomy with Anwar and Azizan. This confession was accepted by the High Court and used as part of the grounds to convict both Anwar and Sukma. The Federal Court however found as a fact that the confession was not voluntarily given and was therefore inadmissible .
Even leaving aside the substantive defences of alibi, political motivation, character assasination and conspiracy to fabricate evidence against Anwar and Sukma, any reasonable, fair–minded and apolitical observer of the sodomy trial would have concluded that there was reasonable doubt raised as to Azizan’s allegations. The unusual circumstances surrounding Sukma’s earlier charge of gross indecency and his confession lends further suspicion to the authenticity of the allegations against Anwar and Sukma in the sodomy trial.
Griffith10 has argued persuasively that the Judiciary by its very nature can never be independent for it exists constitutionally as part of the established order along with the Legislature and Executive. Its consensus is to preserve, maintain and protect the existing order. To fulfil this political function, the Judiciary does so in the name of the law:
“It is within such systems that the judges operate; and they operate to help to run these systems. And authoritarianism is always, by its essential nature, conservative and reactionary. It must preserve itself.11…..The protection of the public interest in the preservation of a stable society is how the judges see their role.12”
Anwar was a real threat to the establishment. He had mass ground support and he divided the Malay community. He substantially weakened the political stranglehold of UMNO over the Malays. He had to be stopped. This explained his defence of political persecution and improper motivation for the charges against him. Ask any taxi–driver or man–on–the–street in Malaysia and few will deny the belief that the charges were politically motivated. To lend a semblance of credibility, a stranger to politics had to be sacrified and Sukma the lamb.
The sodomy chronicles from the High Court to the Federal Court illustrates that the law and legal principles, however sound, are still vulnerable to manipulation by way of “legal finesse–ing” to produce an unsound result one way or another. The High Court judge found that Azizan was a “truthful and creditable witness…..as solid as the Rock of Gibraltar.13” The Court of Appeal (all 3 judges) and the minority in the Federal Court (1 judge) found that there was no reason to interfere with the High Court’s findings and confirmed the same. The Federal Court (2 judges) however, and rightly so, could not agree with the High Court’s firm finding that Azizan was wholly reliable, credible and truthful:
“Evidence does not support such a finding. He was most uncertain, in particular about the “date” of the offence, not just the day or the week or even the months but the year. We do not say he is an “outright liar” as Mr. Christopher Fernando was trying to convince us. But, considering the whole of his evidence, he is certainly not the kind of witness described by the learned trial judge.14”
It then becomes apparent that 5 judges convicted Anwar and Sukma and only 2 acquitted them.
To add to this legal conundrum, it has been said that in assessing the evidence of a complainant, in this case Azizan, a witness cannot be held to be unworthy of credit in one aspect of the case and worthy of credit in another aspect:
“A witness cannot be regarded as a split personality who is worthy of credit at one moment and unworthy of credit at the next.15”
Further, corroboration is only required or afforded if the witness requiring corroboration or giving it is otherwise credible16. Azizan’s evidence failed to meet the threshold of credibility. There was no cogent evidence which required corroboration.
The prosecutors are not free from blame either. Anwar’s complaint of political persecution and conspiracy to frame him with trumped–up charges is to a large extent vindicated by the strong general statements of the Federal Court in the contempt of court proceedings against his counsel arising from the corruption trial17:
“The manner he conducted the proceedings, in particular the interrogation of the appellant and the speedy finding of guilt without even allowing the appellant to call any witness, gave the picture that he was behaving as though he was acting as counsel for the two prosecutors in the motion.…..Apart from the fact that at the relevant time there had been no denials from the two prosecutors and in fact even from MSD, the learned trial judge, in carrying out his summary procedure, demanded an apology from the appellant. The effect of this demand would mean that contempt had taken place which is the very thing denied. There has been a blatant disregard of rules of procedure and considering the frame of mind the learned trial judge was in, he should have been the last person to deal with the contempt issue.”
These statements have to date not been refuted or expunged from the records. The Federal Court went on to hold that the evidence filed by Anwar – that the prosecutors had attempted to fabricate and obtain false evidence – disclosed a prima facie case justifying the application to disqualify them. This case also illustrates how the High Court took it upon itself to shackle Anwar and his defence team from advancing the best possible defence available to Anwar. It amounted to a fetter on the duty and obligation of Anwar’s lawyers to act without fear or favour.
What is my point? The appearance of complicity between the Judiciary, police, prosecutors and a lawyer (Don) shows how the legal process can be abused to produce unfair trials and unsafe convictions. This may not be a revelation but it is precisely for this reason that the International Bar Association’s Minimum Standards of Judicial Independence 1982 defines substantive independence of the Judiciary to mean that when discharging his/her judicial functions, a judge should be subject to nothing but the law and the commands of his/her conscience18 . The essence of this conscience requirement is repeated in the Bangalore Principles of Judicial Conduct 200219:
“A judge shall exercise the judicial function independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.”
Prosecutors are also subject to a vital duty to uphold the dignity of their office. They are not to initiate or continue prosecution when an impartial investigation shows the charge to be unfounded20. They are to refuse to use evidence obtained through unlawful methods, which constitute a grave violation of the suspect’s human rights, especially methods involving torture or cruel, inhuman or degrading treatment or punishment, and are to take the necessary steps to ensure that those responsible for using such methods be brought to justice21. Sukma’s confession is a case in point.
Anwar and Sukma did not have a fair trial in accordance with international human rights standards. The standpoint of the accused is relevant in deciding this. The test is set out in the case of Incal v. Turkey22:
“In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused (see, among other authorities, the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, § 48, the Thorgeir Thorgeirson judgment cited above, p. 23, § 51, and the Pullar v. the United Kingdom judgment of 10 June 1996, Reports 1996–III, p. 794, § 38). In deciding whether there is a legitimate reason to fear that a particular court lacks independence or impartiality, the standpoint of the accused is important without being decisive. What is decisive is whether his doubts can be held to be objectively justified (see, mutatis mutandis, the Hauschildt judgment cited above, p. 21, § 48, and the Gautrin and Others judgment cited above, pp. 1030–31, § 58).”
The majority of the public and international community is of the view that the decision to convict was incorrect, based on the evidence presented. There are serious doubts which are objectively justified from the viewpoint of both the accused and a lay–observer of the sodomy trial. Hence, the oft–quoted statements that the Judiciary, in convicting Anwar and Sukma, did not appear to be independent and did not act impartially. This criticism should not be taken lightly, and perhaps, the sodomy trial now confirms beyond a shadow of a doubt that many institutional reforms must take place23.
The Federal Court decision to acquit was, with respect, correct. But it is arguable that the underlying motivation for the decision is not purely “legal”. The present Prime Minister and his party won the recent general elections with an overwhelming majority. The opposition parties fared badly and are in tatters. Keadilan, formed by Anwar’s wife during his detention and still headed by her had won only 1 seat. Anwar remains convicted at the corruption trial and is thereby disqualified for 5 years from running for political office. He had been incarcerated for more than 5 years. In this time, his support has diminished, and his adversary, the former Prime Minister, Tun Dr Mahathir Mohamad, has left office. The advent of the new Prime Minister coupled with the release of Anwar would in some way unite the Malays and contribute to the “feel–good” factor.
Griffith has said this of the Judiciary24:
“Their principal function is to support the institutions of government as established by law. To expect a judge to advocate radical change, albeit legally, is as absurd as it would be to expect an anarchist to speak up in favour of an authoritarian society. The confusion arises when it is pretended that judges are somehow neutral in the conflicts between those who challenge existing institutions and those who control those institutions. And cynicism replaces confusion whenever it becomes apparent that the latter are using the judges as open allies in those conflicts.”
This may be so in real politic, but it definitely is not right.
The Judiciary was sadly torn apart in 1988. Contrary to popular belief25, the Federal Court decision does not mark the rebirth or rejuvenation of the Judiciary. The decision freeing Anwar was merely a decision which should have been given by the High Court some 5 years ago.
Anwar and Sukma are now free at last. There is doubt whether the institutions and the other actors who played a vital part in the sodomy chronicles will ever truly be free.
|1||See  3 MLJ 193.|
|2||For the Federal Court decision in respect of the corrupt practices charges, see  3 MLJ 193. Anwar started serving his sentence for those charges from 14 April 1999.|
|3||See  1 MLJ 177.|
|4||The Federal Court decision is available at www.kehakiman.gov.my.|
|5||At page 22 of 64.|
|6||At page 38 of 64.|
|7||At page 53 of 64.|
Worrying details of Sukma’s treatment are set out and analysed in the Federal Court judgment at pages 20–46 of 64. By international law standards, such treatment would amount to a gross and wholesale violation of Sukma’s rights under the International Covenant of Civil and Political Rights. It is highly arguable that he would be entitled to compensation for assault, intimidation, false imprisonment, abuse of power, and unlawful arrest and detention.
|9||At page 41 of 64.|
|10||J.A.G. Griffith, “The Politics of the Judiciary”, 1985.|
|11||At page 229.|
|12||At page 233.|
|13|| 3 MLJ 193 at 314.|
|14||At page 18 of 64.|
|15||Goh Ah Yew v Public Prosecutor  MLJ 150 at 153.|
|16||See Deputy Public Prosecutor v Kilbourne  1 All ER 440.|
Zainur Bin Zakaria v. Public Prosecutor  3 MLJ 604 at 636. The High Court cited one of Anwar’s counsel for contempt for filing an application to disqualify 2 prosecutors in the Corruption Trial, Dato’ Abdul Gani Patail and Encik Azahar Bin Mohamed, on the basis that they attempted to fabricate and obtain false evidence against Anwar. The former is presently the Attorney–General and the latter presently a Judicial Commissioner.
|19||Value 1 Independence, Application 1.1.|
See Guideline 14, Guidelines of the Role of Prosecutors, adopted by the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 1990.
See Guideline 16, Guidelines of the Role of Prosecutors, adopted by the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 1990.
|22|| ECHR 48 (9 June 1998) at paragraph 71.|
|23||Some of these include bringing back jury trials and shortening police remand periods to no more than 48 hours.|
|24||At page 235.|
|25||See, for example, Malaysian Bar Council’s press statement dated 2 September 2004 “Anwar’s Successful Appeal”.|