The time immemorial debate as to whether the accused must prove their innocence or the Prosecution needs to prove their guilt was taken to new heights today when the court was told it is Anwar’s and Sukma’s task to prove they are innocent of the charges of sodomising Azizan Abu Bakar.
THE CORRIDORS OF POWER
Raja Petra Kamarudin
Anwar’s and Sukma’s alibi may be airtight, but they should be rejected
The time immemorial debate as to whether the accused must prove their innocence or the Prosecution needs to prove their guilt was taken to new heights today when the court was told it is Anwar’s and Sukma’s task to prove they are innocent of the charges of sodomising Azizan Abu Bakar.
Anwar and Sukma not only had to prove their innocence, but they did manage to do so, and they did this by providing alibis for the period from 1 January 1993 to 31 March 1993, the date (one night in those 90 days) they were supposed to have sodomised Azizan.
But the Prosecution said their alibis should be rejected because it had not followed proper procedure. Their alibis may be good, but it was not proven the right way, so it should not be considered.
The Defence had earlier asked that the trial be declared null because they had requested for a twelve-day postponement to enable them to file their Notice of Alibi, which is mandatory under Section 402A of the Criminal Procedure Code, but the trial judge had rejected this request.
The trial judge cannot use his discretion in this matter, argued the Defence. It is mandatory and the trial judge should have complied with this rule.
And, now, the Prosecution has jumped on the bandwagon and agrees with the Defence. However, it is not that the trial should be declared null as what the Defence wants, but that Anwar’s and Sukma’s alibis should be declared null instead.
“We agree that the learned judge misdirected himself for failing to comply with the requirements of Section 402A of the Criminal Procedure Code to exclude the evidence in support of Anwar’s alibi on the ground that he did not serve a Notice of Alibi on the Prosecutor at least ten days before the commencement of the trial,” said the Prosecution.
But the amendment to the charges was made DURING the trial - on 7 June 1999 - and not BEFORE the trial. So how could the Defence have filed their Notice of Alibi ten days BEFORE the trial? Further to that, the Defence DID ask for a ten-day postponement to enable it to file this notice, but it was the judge who turned down the request.
Well, the judge was wrong, says the Prosecution, so Anwar’s alibi should be rejected. Anwar, therefore, no longer has an alibi for the period of January to March 1993, which means he can no longer prove he was never at the Tivoli Villa.
The prosecution concluded by saying, “In conclusion, it is submitted that his honourable court ought to exclude the evidence of Dato Seri Anwar Ibrahim on the ground that he did not serve a notice to the Public Prosecutor in accordance with Section 402A of the Criminal procedure Code.”
Then, to add insult to injury, the Prosecution went on to say, “But the argument on the unconstitutionality of the trial ought to be rejected because the evidence in support of the alibi, if excluded, would be rightly excluded.”
So, there you have it. The Trial Judge was wrong. Even the Prosecution agrees with this. He broke the law. Anwar should have been given the postponement to file his Notice of Alibi. This is mandatory and the Trial Judge ought not to have used his discretion in the matter.
But the trial itself is not defective. So it should not be declared a mistrial. Instead, only Anwar’s alibi should be rejected. So, Anwar would no longer be able to prove he was never in Tivoli Villa those entire 90 days from 1 January 1993 to 31 March 1993.
Now, that’s one very sleek way to screw the one-time Deputy Prime Minister of Malaysia. It looks like it was not Anwar who sodomised Azizan after all, but the AG who is screwing Anwar. And what a clever way to do it too! Use the Defence’s argument. Agree with them that the Trial Judge acted illegally. Then, use the Trial Judge’s illegal act against the very person who brought it to the court’s attention - though it was he in the first place who raised the protest.
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