“A witness who constantly changes his stand means he is lying,” argued Karpal. “And yet the judge declared that Azizan’s testimony is ‘as strong as the Rock of Gibraltar’.”
THE CORRIDORS OF POWER
Raja Petra Kamarudin
Karpal Singh continued where he left off on Wednesday, 26 March 2003, by emphasising that Section 402A of the Criminal Procedure Code is mandatory and there is absolutely no discretion in the matter.
The Kuala Lumpur Appeal Court was told that the date on the charge against Anwar was amended twice; from ‘May 1994’, to ‘May 1992’, then to ‘one day from1 January 1993 to 31 March 1993’. The defence had asked for a postponement to allow it time to file its notice of alibi but the court did not grant this ten-day grace that it should have under the law.
“This violated Article 5(1) of the Constitution,” argued Karpal. “Dato Seri Anwar was deprived of his right under the law.”
Karpal said the trial judge had acted prejudicial and irredeemable and he ought not to have sanctioned the prosecution of Anwar.
Karpal then asked the court to consider setting aside the judgement against Anwar.
On the credibility of the prosecution’s star witness, Azizan Abu Bakar, Karpal said Azizan gave five conflicting statements at different points of time.
Azizan’s statement was recorded under Section 112 of the Criminal Procedure Code and, 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 cited for perjury if he/she lies).
Azizan, who had his statement recorded over five different dates from August 1997 until June 1999, however, kept changing his stand.
“A witness who constantly changes his stand means he is lying,” argued Karpal. “And yet the judge declared that Azizan’s testimony is ‘as strong as the Rock of Gibraltar’.”
“Far from it!” said Karpal.
“The duty of the prosecutor is not to obtain a conviction but to administer justice.”
“The role of the prosecutor should exclude the notion of winning or losing.”
Karpal said that since Azizan made five conflicting statements at different points of time, this “made an improbability of what actually happened.”
As for the fact that Anwar was charged in 1999 for an event that was alleged to have happened in 1993, the six years delay would have reduced his opportunity of preparing a proper defence.
“Memories fail with time erasing the ability to recollect happenings six years ago,” said Karpal. “A fair trial could not be achieved with such a long time lapse.”
“Under section 402A, Dato Seri Anwar’s trial should never have taken place. This is a serious miscarriage of justice.”
“Your Lordships are bound to rule that Section 402A has been infringed.”
The Bench and Karpal then engaged in a debate as to the notice of alibi which, according to the Bench, is to the benefit of the prosecution.
Karpal argued that it did not matter as to whose benefit the notice of alibi may be. It is something mandatory and not something the judge could use his discretion to rule. The defence had made a request for a postponement but the trail judge denied the request.
“The judge did not do his duty. He should have stopped the trial and all the evidence should have been ruled inadmissible.”
Karpal then related how the defence had applied for a postponement to allow the investigating officer to investigate Anwar’s alibi. The Attorney-General then, Tan Sri Mohtar Abdullah, stood up to say he had no objections to the postponement.
“However, after lunch, the AG turned turtle and raised an objection.”
Even the judge had declared that the police should investigate the alibi. “Then, later, he turned round and said that it is their choice, that it was their discretion if they choose to do so.
“The judge said that it was the prosecution’s own funeral if they do not challenge the defence’s alibi.”
Karpal then told the court that the judge had stated that corroboration is necessary. He then turned around and said he was prepared to accept Azizan’s testimony without corroboration though Azizan was an unreliable testimony who perjured himself many times.
“Corroboration is necessary. But, if a witness is unreliable, then, even if his testimony is corroborated, it still cannot be accepted and should be rejected.”
Karpal then took the court through Azizan’s close proximity (khalwat) case in the Alor Gajah Syariah Court. Because of this case, Azizan’s credibility as a witness had been destroyed.
Azizan said he had revealed the alleged sodomy incident because of his “duty and honour as a Muslim.”
Karpal said the defence then requested to recall Azizan as a witness to reassess his credibility. The judge, however, would not allow it.
“You can put a label of a thoroughbred on a horse,” said Karpal. “But a donkey is still a donkey.”
“The judge was not only scraping the bottom of the barrel. He was scraping the outer bottom of the barrel.”
The investigation officer had testified that Azizan’s testimony had no contradictions. “Then why amend the date on the charge?” asked Karpal.
“Was the judge judicially honest in arriving at the decision that Azizan is a reliable witness who did not perjure himself?”
Karpal then said that medical evidence is prime evidence. “Why was Azizan not sent for a medical examination? This could have corroborated Azizan’s testimony.”
“The investigation officer admitted that there was still time to send Azizan for a medical examination.”
“The judge swallowed the evidence hook line and sinker.”
“Allegations of sodomy can easily be made but are very difficult to prove. The evidence therefore must be very convincing.”
In any trial, there is the prosecution’s case and the defence’s case. But Dato Seri Anwar was denied his constitutional right to a proper defence. Anwar, therefore, had only half a trial - which means he had no trial.
Karpal then asked the court to allow Anwar’s appeal and set aside the conviction.
“Anwar’s prosecution, in fact, ought not to have commenced right from the word go. No man properly trained in the law would have done what the AG (then) had done.”
“The prosecution not only wanted their pound of flesh. It also wanted a pint of blood.”
“Azizan’s evidence has turned to stardust.”
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