KUALA LUMPUR: A lawyer who defended Anwar Ibrahim in his three trials – abuse of power, sodomy 1 and sodomy 2 – has questioned whether the PKR leader was given a fair trial as the Yang di-Pertuan Agong had granted him a full pardon on the basis that there was a “miscarriage of justice”.
S N Nair said it must then naturally follow that all judges who convicted Anwar on the three charges were guilty of not dispensing justice according to the law and had failed to uphold their judicial oath.
In May, Sultan Muhammad V granted Anwar a full royal pardon on the two sodomy and abuse of power convictions.
“The convictions are explicitly founded on the grounds of miscarriage of justice and I bear witness that the man (Anwar) had undergone gross suffering in all the years of his painful incarceration,” Nair told FMT.
Nair said the king’s declaration was legally significant and lawyers and citizens should speak out and demand action.
His remark followed a revelation by Court of Appeal judge Hamid Sultan Abu Backer at an international law conference on Aug 16 that he was “severely reprimanded” by a “top judge” for his dissenting judgment in the M Indira Gandhi unilateral conversion case.
Hamid said he was subsequently not assigned or empanelled to hear cases relating to the Federal Constitution and public interest matters.
Lawyer Mohamed Haniff Khatri Abdulla also said that he was recently informed that a “senior judge” had reportedly meddled in the majority decision to allow the late Karpal Singh’s appeal and acquit him on a sedition charge.
As a result, the Court of Appeal in a 2-1 majority ruling affirmed the High Court’s decision to convict the veteran lawyer and MP.
Haniff, however, declined to reveal the identity of the senior judge.
Karpal’s daughter Sangeet Kaur has lodged a report with the police to investigate Haniff’s claim.
In the light of both exposures, Nair said he was sure that there could have been similar interference by “top judges” and previous attorney-generals which warranted a full public inquiry.
Nair said the inquiry must also extend to the Attorney-General’s Chambers from the time of the late Mohtar Abdullah who was AG from 1994 to 2000.
He also said those responsible should not be allowed to get away with their judicial misconduct and abuses.
“This new Malaysia has just presented a golden opportunity to restore the dignity and integrity of the judiciary,” he said .
In Jan 2012, Anwar was acquitted for allegedly performing carnal intercourse on his former male aide Mohd Saiful Bukhari Azlan.
Defence lawyers contended that Saiful’s testimony about the alleged sodomy, which was said to have taken place at a Kuala Lumpur apartment in 2008, was riddled with inconsistencies and the investigators mishandled the DNA evidence.
In his ruling, judge Mohamad Zabidin Diah expressed concern that the submitted evidence was tainted.
“The court at this stage could not with 100% certainty exclude the possibility that the [DNA] sample is not compromised. Therefore it is not safe to rely on the sample.
“There is no evidence to corroborate the charge,” he added.
However, in March 2014, on appeal by the prosecution, Anwar was sentenced to five years’ jail after the Court of Appeal overturned his sodomy acquittal, ruling that the trial judge erred in rejecting the findings of the DNA evidence.
The three-men bench led by Balia Yusof Wahi, Aziah Ali and Mohd Zawawi Salleh unanimously decided that the High Court failed to “critically evaluate” the evidence submitted by government chemist Dr Seah Lay Hong.
A year later, a five-member Federal Court bench chaired by the then chief justice Arifin Zakaria affirmed the conviction and sentence.
Arifin said there was overwhelming evidence that Saiful had been sodomised by Anwar.
Other members of the bench were Raus Sharif, Abdull Hamid Embong, Suriyadi Halim Omar and Ramly Ali.
Anwar also failed in his final attempt in 2016 to set aside the conviction through a review application.
In July 2002, the Federal Court panel headed by then chief justice Mohamed Dzaiddin Abdullah, Federal Court judges Steve Shim Lip Kiong and Haidar Mohd Noor also upheld Anwar’s six-year jail term for abuse of power.
The Court of Appeal had also affirmed the decision of the High Court which found him guilty after a long trial.
In the Sodomy 1 case which began in 1999, the High Court and the Court of Appeal found Anwar guilty but the Federal Cout in 2004 acquitted him.
Nair said by then, Anwar had served the six-year jail term for abuse of power.
The lawyer said the majority ruling of the Federal Court was unconventional and grossly unfair as the judge (Abdul Hamid Mohamad) made a statement in the judgment that the sodomy could have taken place but allowed Anwar’s appeal due to lack of evidence.
Anwar also failed in his bid to expunge that controversial statement by Hamid.
Anwar, who will officially take over as PKR president in November, told a news conference on May 16 that the king gave the pardon on the basis that there was a conspiracy to condemn him and assassinate his political character.
“The pardon is complete and unconditional. The entire convictions are erased automatically,” he said.