by P Ramakrishnan
Aliran
21 February 2014

What is important in any hearing is fairness to the accused. But certain judges don’t seem to be very bothered about this principle, says P Ramakrishnan.

The survival of Umno in the forthcoming GE14 is hanging by a thread. By all counts, it may be the end of the road for the party that has dominated Malaysian politics for more than half a century.

Umno is aware of this. And that is why it is desperately trying to put Anwar Ibrahim away to save its skin. A free Anwar will sound the death-knell for Umno.

Politically it may not succeed in its attempt to do away with Anwar because his influence is wide and far-reaching. He is seen by the majority of Malaysians as the only hope of toppling Umno from its power base – which will pave the way for an alternative government.

All the lies that Umno has concocted against Anwar have not made any impact on the people. This approach has been tried since 1998 – to tarnish his reputation and smear his image – but every attempt failed miserably. People have wised up to the tricks and manipulations resorted to by Umno at every opportunity and during elections, but such ploys have had no effect to benefit Umno.

Moreover, the people are aware that Umno is no longer the sole mouth-piece for the Malays. Pas and Keadilan are equally capable of representing the Malays far more effectively when compared to Umno. To add to their headache, the Malays are even turning to the DAP and supporting their candidates. Clearly, it is a losing battle for Umno.

This is why Anwar’s pending court cases are so crucial. Malaysians are convinced that what cannot be achieved politically by Umno can perhaps be achieved through the courts. This is possible simply because only a few judges seem to be pro justice whereas many are inclined to dismiss cases based on mere technicalities.

Anwar’s application to recall former investigation officer Supt Jude Blacious Pereira was based on the fact that the Kuala Lumpur High Court had found him “not a fit and proper person” to be admitted as a lawyer to practise at the High Court of Malaysia. But the court dismissed Anwar’s application on the grounds that there was no need to adduce further evidence from Pereira.

Suhakam in its investigation with regard to the detention of lawyers had concluded that Pereira was not a reliable and trustworthy witness.

When a person’s integrity is in serious doubt, it is natural to wonder whether he could have acted honourably and truthfully in Anwar’s first sodomy trial. It was also established in that trial that he had tampered with an exhibit concerning the DNA.

It is, therefore, reasonable to believe that a person of such character might not have told the whole truth during the trial. If Anwar wants him to be recalled to be further questioned, what is wrong? Isn’t he entitled to maximum defence in all fairness?
Then we have the other case where Anwar wanted to remove Muhammad Shafee Abdullah from leading the prosecution team in the government’s appeal against the Sodomy II verdict. Anwar depended heavily on Kuala Lumpur CID chief Mat Zain Ibrahim’s statutory declaration to disqualify Shafee from prosecuting Anwar. In that declaration, Shafee was painted as someone who was part of a plot that took place in Tun Dr Mahathir’s house.

The court ruled that since Mat Zain did not affirm any affidavit in support of Anwar’s application, the former’s statutory declaration was viewed as statements that were made outside the court and, as such, there was no prima facie material before the court to establish a case. And hence, Anwar’s application was dismissed.

Much earlier, in the case concerning whether Anwar could submit Mat Zain’s statutory declaration as a supporting document, the court threw out the statutory declaration on technical grounds: the name and address had been left out, the IC was wrong – all not serious omissions. In any case, the court had its inherent right to summon Mat Zain to affirm his declaration and rectify the errors in it. That would have been in the interest of justice. But unfortunately that wasn’t the case. It was rigid justice, which Thomas Fuller, the writer, termed as “the greatest injustice”.

How fatal was this error? Shouldn’t the accused be given every means and opportunity to defend himself? If that defence is denied through technicalities, the court is grossly unfair to the accused. It is the accused who has to prove his innocence and for that he needs the assistance of the court.

If the court deprives him of this assistance and becomes an obstacle to his defence, then the judicial process becomes a farce. At the conclusion of the hearing, people should not come to the conclusion that the court was prejudiced against the accused.

It is no use to quote this law and that regulation to prevent access to material that may be crucial to the accused to establish his innocence. In the end, what is important in any hearing is fairness to the accused. But certain judges don’t seem to be very bothered about this principle. It is to them only cut and dried, applying rules and regulations without any notion of fairness.

If this were the case in Anwar’s appeal, then the judiciary will put away Anwar for good and save the skin of Umno.