By R. SivarasaSHAH ALAM: This is not be the first time in a case involving Anwar Ibrahim that the prosecution is depending on fabricated evidence.
The cases of 1998 and 1999 were replete with incidents of manufactured confessions, fabricated DNA evidence and suppression of evidence on the part of the police and the senior prosecutors involved.
Several quick examples can be given. Attorney General Gani Patail, who was one of the senior DPPs prosecuting Anwar in 1998, was exposed this year as having fabricated medical evidence in the form of medical reports in the investigation into former IGP Rahim Noor’s brutal assault of Anwar on the night of 20th September 1998.
After the world saw Anwar’s black eye, there was a huge outcry and widespread international condemnation. A police investigation then followed.
The Investigating Officer for the case, Dato Mat Zain, has confirmed in a letter to the MACC in April 2009 that Gani Patail was actively fabricating false medical reports with the assistance of Musa Hassan (now IGP) in an attempt to suggest that Anwar’s injuries were self-inflicted along the lines of a suggestion made publicly by Dr. Mahathir.
Fabrication of evidence against Anwar also went on in related cases involving individuals connected with Anwar.
Gani Patail was implicated in serious charges of threatening Nallakaruppan with the death penalty to force him to give false evidence against Anwar. This was exposed in the form of a statutory declaration by Nallakaruppan’s lawyer Manjeet Singh Dhillon, who was a direct witness to the blackmail and extortion that Gani perpetrated.
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- Federal Court judge Steve Shim in the case of Zainur Zakaria v PP [2001] 3 CLJ had this to say to say of Anwar’s application to disqualify Gani and Azahar Mohamed as senior prosecutors in the 1998 case because of their involvement in threatening Nallakaruppan with the death penalty to get him to assist in the fabrication of evidence:
“In the circumstances, was he not justified, on a prima facie basis, in complaining that AGP (Gani Patail)’s conduct at the meeting on 2 October 1998 was an attempt to get Nalla to fabricate evidence in order to perfect charges against him for other alleged sexual offences?”Judge Augustine Paul did not disqualify Gani. Instead he found Anwar’s solicitor, Zainur Zakaria, in contempt of court for filing the application and sentenced him to three months in prison. Gani went on to become Attorney General. Azahar became a High Court judge.
Sukma, the adopted younger brother of Anwar, was arrested in September 1998 as well, and held incommunicado for 14 days.
His lawyer’s repeated requests to see him were rejected. He was subjected to mental and physical torture until he made a confession to committing sodomy with Anwar.
The police officer named in the Court of Appeal judgment responsible for this was Musa Hassan, now Inspector-General of Police.
A physical examination by one Dr Zahari Noor showed there was no evidence of penetration. This report was known to the prosecution, who suppressed it when Sukma was produced in court to plead “guilty” based on his purported confession. The court prevented the lawyer appointed by Sukma’s family from speaking on his behalf after an objection by the prosecutors ( Gani Patail and Yusuf Zainal Abiden).
The Court of Appeal in the reported judgement of Sukma Darmawan Sasmitaat Madja v PP [2007] 4 CLJ 697] had this to say in June 2006 of the case:
“Here we have a case of an improper conduct of a prosecution by the intentional suppression of evidence favourable to the defence. And there can be no clearer case of an injustice where the plea of guilt is alleged to have been induced by illegitimate pressure.”
Unfortunately for him, all the appellate courts he faced were hostile. Judges like Low Hop Bing J in the Court of Appeal, together Zaki Tun Azmi ( the current Chief Justice ), Zulkefli Makinudin J. and Nik Hashim J. in the Federal Court have made sure that Dr. Munawar’s demands for justice and to have his case reopened for a new trial were turned down.
They made sure that Dr. Munawar would never be able to expose the ordeal he experienced in 1998 at the hands of the police, prosecution and courts in a new trial.
His application to review the earlier Federal Court decision was turned down very recently–on 28th December 2009–by a Federal Court panel comprising of Arifin Zakaria J., Raus Sharif J. and Mohd Ghazali Mohd Yusuf.
The clear contradiction between the treatment of Sukma’s case and Munawar’s case at the appellate courts is obvious.
In any criminal legal system, when a confession is challenged on the grounds that it is involuntary, the accused is automatically entitled to a full hearing on its voluntariness.
This safeguard is even more important when a guilty plea was recorded on the basis of that involuntary confession.
Regrettably the highest courts in Malaysia have lost sight of such fundamental principles.
By their actions, they have legitimised serious crimes committed by police and prosecutors in the case of Dr. Munawar, who was arrested, detained and tortured into making a false confession and then jailed for six months, the purpose being to tarnish Anwar’s name by association.
TOMORROW, on a screen near you: Malice and Conspiracy
Meanwhile, enjoy these reruns:
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