The Malaysian Insider
By Clara Chooi
December 14, 2010

KUALA LUMPUR, Dec 14 — Putrajaya has closed the door for good on Datuk Seri Anwar Ibrahim’s 1998 “black-eye incident” despite allegations of evidence fabrication against Attorney-General Tan Sri Abdul Gani Patail.

In its highly-anticipated explanation to Parliament today, the government clearly side-stepped the damning accusations made by former investigating officer Datuk Mat Zain Ibrahim that Abdul Gani had falsified documents in the case, brushing aside the former’s two recent open letters.

Instead, Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Aziz told the House today that there was no need for Mat Zain to complain that the independent panel formed to investigate the evidence fabrication had failed to clear his name in the incident.

This, said Nazri, was because Mat Zain had never been the subject of the panel’s probe and had merely been called forth as a witness to testify.

“The MACC’s (Malaysian Anti-Corruption Commission) advisory board, though its letter to Datuk Mat Zain on July 23, 2009, had already stressed that there was no need for the independent panel or the MACC to clear Mat Zain’s name, seeing as he was not the subject of the investigation in the first place,” he said.

Nazri also said that the panel had been constitutional, despite Mat Zain’s claim that the Solicitor-General had no right to appoint the members.

In his first open letter to Inspector-General of Police Tan Sri Ismail Omar, Mat Zain had claimed that the right to appoint a tribunal only lay with the Yang di-Pertuan Agong, based on the prime minister’s advice.

The A-G, he added, had deceived the Cabinet into believing that the S-G could act in his stead and appoint the members as deputy public prosecutors under the Criminal Procedure Code.

In July 2008, Anwar had filed a police report, accusing Abdul Gani, Mat Zain, Musa and a Dr Abdul Rahman Yusof of falsifying a medical report on his black-eye case, which alleged that his injuries had been self-inflicted.

Three independent panel members comprising Federal and Court of Appeal judges later cleared Abdul Gani and Musa of the allegations, but the status of Mat Zain and Dr Abdul Rahman remained uncertain.

“But the 2-1 majority decision on Abdul Gani meant that one of the panel members found testimony linking Abdul Gani to wrongdoing. However, both Abdul Gani and Musa were cleared of all allegations,” Mat Zain had said in his later.

Mat Zain had filed a RM30 million defamation suit against Anwar in 2008 to clear his name after the Pakatan Rakyat leader claimed that Abdul Gani, who was a senior DPP then, and Musa, who was an investigating officer, had fabricated evidence against him in the black-eye assault.

But Nazri insisted today that the appointment of the panel members by the S-G had been constitutional, claiming that it had been in accordance with section 376(2) of the CPC, read together with section 376(3).

“If you study section 376 of the CPC carefully, only one legal stand can be seen, which is that the S-G has the power to appoint DPPs.

“Please allow me to read the Act,” he said and proceeded to read several CPC provisions, which states, “The A-G shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions and proceedings under this code. The S-G shall have all powers of a DPP and shall act as Public Prosecutor in case of the absence or inability to act of the A-G. The Public Prosecutor may appoint fit and proper persons to be DPPs who shall be under the general control and direction of the Public Prosecutor and may exercise all or any of the rights and powers vested in or exerciseable by the Public Prosecutor by or under this Code or any other written law except any rights or powers expressed to be exerciseable by the Public Prosecutor personally and he may designate any of such DPPs as Senior DPPs.”

Nazri pointed out that the Act clearly gave power to the S-G to act as the Public Prosecutor in the event that the A-G could not act as one.

“In this case, Abdul Gani was the subject of the investigation and because of that, it was not fair or appropriate for him to appoint the members of the panel.
“Due to this, the S-G had taken over the power to do so and this was valid,” he said.

At the conclusion of Nazri’s explanation, Lim Kit Siang (DAP-Ipoh Timor) stood up to protest that the explanation was unsatisfactory but his attempt was thwarted by the Dewan Rakyat Speaker.

Among other allegations, Mat Zain has accused the A-G of being guilty of falsifying the medical reports in the incident through “careful planning, preparation and a deliberate intention to fulfil clear motives”.

In his second open letter, he also slammed Home Minister Datuk Seri Hishammuddin Hussein for attempting to silence his claims when the latter told Lim in a written response recently that the case had been closed and would not be reopened.

This, he said, showed that the government had an intention to protect certain individuals in the incident.

Mat Zain also said that the royal commission of inquiry’s investigation report on the issue in 1999 had not included all three medical report, which totalled 65 pages.

“To be fair to Abdul Gani, I do not have information to say that he had a hand in making sure the first report was not included in the final document but I would not be shocked if he was indeed involved because he has a personal stake in it.

“What is worrying here is that if even the royal commission of inquiry’s report can be manipulated, just imagine what can be done to investigation records involving common citizens,” he had written.

Mat Zain had also expressed hope that IGP Ismail would take another look at the case and reminded him that no one had the power to indemnify any individual from criminal liability.

“It is important to look at the fabrications that occurred in the investigation of the ‘black-eye’ case and in all other cases related to it, to identify who the main players are.

“These evidences, whether direct or circumstantial, have been very clear,” he said.

Tan Sri Rahim Noor, the IGP in 1998, had taken the fall for the incident and had admitted he assaulted Anwar following the royal commission of inquiry probe in 1999.

He has since been convicted of the crime and sentenced to two months’ jail and a fine of RM2,000. Rahim has completed his sentence.