JUDGMENT ON ANWAR IS THOROUGHLY FLAWED

By: Kim Quek

Justice Arifin Jaka's Summary Judgment is a total fiasco. In his sketchy Judgment, the handful of grounds on which Arifin convicted Anwar is mostly either untrue or illogical. In his opening statement, Arifin rightly pointed out that "the Prosecution" case rests principally on the evidence of Azizan, and the Defence case on alibi and conspiracy to fabricate evidence. Arifin was also right in stating that Azizan's credibility was vital to this trial. Regrettably, the above statements are about the only things stated correctly by Arifin in the entire Judgment

ON AZIZAN'S EVIDENCE

A main thrust of Arifin's Judgment was that Azizan's evidence was corroborated by Sukma's confession. This claim was untrue. Firstly, Sukma's confession in Sept 98 contradicted Azizan's evidence, in that Sukma's confession stated that sodomy in his Tivoli apartment took place about two or three years ago (meaning 95 or 96) (Star 29.07.99), while the alleged offence in this trial is between Jan and Mar 93.

Secondly, the Defence alleged that Sukma's confession was a fabrication forced upon Sukma by the police for the purpose of incriminating Anwar. Goring details of physical and mental torture over a 12-day period in Sept 98 was given by Sukma in the first instant available to him in his affidavit dated 10th Dec 98, and also later in his testimony in this trial.

Defence also produced the following unchallenged evidence to disprove the accuracy of the "confession" thereby reinforcing its allegation that the "confession" was fabricated under coercion:

Sukma's confession stated that he drove Anwar from his official residence to the Tivoli apartment for the sodomy rendezvous (Star 29.07.99), but Anwar did not move into his official residence until mid 94.

Contrary to Sukma's story in the "confession", Anwar did not share a bed room with Sukma in the house of Anwar's father in Petaling Jaya, but an Indonesian student Hermawan Bustaman did. Also, Anwar never stayed in Section 17 of Petaling Jaya as claimed in the "confession".

Sukma stated in the "confession" that his last sexual encounter with Anwar was in March or April 98, but forensic pathologist Dr. Zahari Noor concluded that "there were no physical signs on his private parts that he had homosexual activities", after a thorough examination on Sukma. (Star 07.07.99)

In spite of the above evidences, Arifin said, "I am convinced of the truth of what is stated in the confession¨. Arifin further said, "This finding is consistent with the facts that Sukma had used this confession in his mitigation when he had pleaded guilty earlier in the Sessions Court, when he was charged with an offence in Section 377D of the Penal Code."

In making the above statement, Arifin failed again to deal with Sukma's testimony that using the confession to plead for leniency was something pre-planned by SAC(I) Musa. Arifin also commended Azizan's credibility as a witness, saying that the latter "came out unscathed" after a grueling cross-examination, and that "there is no necessity for Azizan to lie as he had nothing to gain but everything to loose by coming out with this complaint."

These statements are manifestly untrue. Azizan oscillated many times under oath between "he was sodomised" and "he was not sodomised by Anwar", and between "he was instructed" and "he was not instructed by the police" to change the date of the alleged offence from the first date to the second to the third.

In fact Arifin himself was often exasperated by Azizan's frequent shifting testimony, prompting Arifin to say on record: "This witness is saying one thing today and another thing tomorrow." Arifin also said "This witness refuses to answer even simple questions". Azizan's credibility as a witness took another serious blow when he was later convicted and jailed in a Syariah Court for committing illicit sex, after having admitted he had lied earlier in the same Court.

Arifin's claim that Azizan "has nothing to gain" blatantly contradicted unchallenged evidence in court that Azizan, a former driver, was made an executive and a director of a company and was given a car, soon after he accused Anwar of sodomising him.

ON DEFENCE OF ALIBI

Arifin said Defence's alibi failed because Anwar did not give his whereabouts between lst Jan to 12th Feb. The truth is Anwar's unchallenged alibi covered from 4th Feb to 31st Mar. As for the period 1st Jan to 3rd Feb, Defence had produced unchallenged evidence that the apartment then was under heavy renovation and that the mattresses to the rooms were moved in only on 12th Feb. Arifin now said, "Even if the divan and mattress were not delivered until Feb 12, 1993, to my mind it does not mean that there was no other bed and mattress". This speculation by Arifin is not feasible, as the ceilings and wall between the master bedroom and the adjoining room was broken down during the renovation, and the broken bricks and ceilings had to be deposited in the third and only remaining room in the apartment, leaving no space for the queen sized bed described by Azizan to be accommodated there. Arifin's rejection of Defence alibi is therefore faulted.

ON DEFENCE OF FABRICATION

Defence had produced witnesses to substantiate the motive, identify the individuals and describe the activities, involving politicians, diplomats, police and ordinary citizens in the fabrication of evidence and the plotting of Anwar's downfall. Arifin had not come up with any challenge to these evidences in his Judgment.

Instead, he said: "With regards to the defence of fabrication, I am satisfied that the evidence on record does not support the defence. The evidence of Tun Hanif Omar on the question asked by the first accused on the possibility of blackmailing him, indicates that the first accused had something to worry about. The evidence of Azizan, when he said the first accused asked him to lie on the declaration and when the first accused asked SAC(I) Musa to stop investigations against him, militates against the defence of fabrication of evidence."

Arifin's above statement is a mouthful of skew logic. There is not an iota of evidence from the above witnesses to negate the well-knit and unchallenged evidence of political conspiracy and fabrication as constructed earlier by the Defence. The abovementioned evidences of Hanif, Azizan and Musa are totally unrelated to the issue of conspiracy and fabrication. Apart from being unrelated to fabrication, the pivotal significance attached by Arifin to these evidences is also not justified.

Azizan is a discredited witness, and his assertion that Anwar asked him to lie cannot be trusted without corroboration. Musa has played a mirky and questionable role in the entire investigation of these cases. His part in fixing and changing the various dates of offence was hardly disguised.

The evidences submitted by Musa and Hanif could at best be taken by Prosecution to cast suspicion on Anwar's homosexual status, but could in no way be looked upon as proof beyond reasonable doubt that Anwar had committed homosexual act in the Tivoli apartment between Jan and Mar 93.

IN CONCLUSION

Arifin has failed to justify his verdict that the Prosecution has proven the offence beyond reasonable doubt in that :

1. He has not successfully restored confidence to the Prosecution case which was fatally marred earlier during the trial, due to unjustifiable inconsistencies in the dates of the offence and in questionable evidence given by the principal witness Azizan.

2. He has not succeeded in challenging Defence's alibi and Defence's evidence of conspiracy and fabrication of evidence against the accused.

In fact, reviewing the entire trial, the balance of evidence is so overwhelmingly tilted in favour of the Defence that it looks more like the Defence has succeeded in proving the ruling power guilty of political and criminal conspiracy to persecute Anwar, rather than Anwar is proven guilty of sexual offence. When this trial is considered together with the previous separate trials on Anwar, Sukma and Dr. Munawar, one cannot help but conclude that the entire exercise of these trials is a grotesque perversion of justice and a massive abuse of public institutions to serve the evil interests of one man to the destruction of another.