Last edited: October 03, 2004

Federal Court Upholds Anwar’s Conviction For Corruption General, September 15, 2004

Malaysian National News Agency PUTRAJAYA—Former Deputy Prime Minister Datuk Seri Anwar Ibrahim Wednesday failed in his bid to have the Federal Court review its decision to uphold his conviction and six-year jail sentence for corrupt practice.

The Federal Court three-member panel comprising Court of Appeal President Datuk Abdul Malek Ahmad and Federal Court judges Datuk Siti Norma Yaakob and Datuk Alauddin Mohamed Sheriff unanimously upheld Anwar’s conviction and sentence.

Following the decision, Anwar, under Malaysian law, is barred from returning to active politics until 2008. If the decision has been otherwise, the ban would have been lifted and Anwar would be able to return to active politics immediately.

Anwar, 57, who completed the sentence imposed by the Kuala Lumpur High Court on April 14 1999, walked out from the Federal Court a free man on Sept 2 when it allowed his appeal to set aside the conviction and nine-year jail sentence imposed by the Kuala Lumpur High Court for sodomy.

Anwar is now undergoing health treatment in Munich.

In his application, Anwar had sought that the Federal Court exercise its power under Rule 137 of the Federal Court Rules 1995 to set aside the conviction and sentence imposed on him by the High Court on four charges of corruption by interfering in police investigations into allegations of sexual misconduct against him.

The Federal Court, on July 20 2002, upheld the High Court’s decision.

In his judgement, Justice Alauddin said: “Finally we have given our utmost consideration to all the four applications before us. We find that there are no merit to invoke the exercise of inherent powers under Rule 137. In the result all the four applications are hereby dismissed.”

Three judgements were delivered by the court, dealing respectively with different issues raised by Anwar’s counsel in the hearing.

Justice Alauddin, in his 22-page judgement, dealt with submissions by counsel Christopher Fernando relating to issues to seek fresh or additional evidence to be adduced in the case as those evidence were unavailable during the trial.

Fernando based his arguments on suppressed evidence pertaining to the attempt by two prosecutors to allegedly procure fabricated evidence against Anwar at the corruption trial.

Justice Alauddin, in his judgment, said the issues raised by Anwar were all issues that could have been obtained during the trial and would not materially affect the result of the trial had it been brought up for consideration.

“We take the view that by introducing such evidence, the applicant (Anwar) is seeking to reopen, re-examine and review the decision which has been conclusively decided by the final court of justice.

“The issues raised by Anwar cannot be viewed as a ground to invoke Rule 137. In essence, it is an attempt to persuade this court to accept the purported new evidence with a view to relitigate the appeal,” he said.

Justice Alauddin said the purported new evidence were not evidence relevant to the charge and they do not qualify to be new evidence before the court. The court felt the new evidence ought to have been contemplated by Anwar’s able defence team during the trial itself as it was available to the defence team even while the trial was going on, he said.

“The allegation of misapprehension of facts against the trial judge is not new evidence but is an issue that goes to the merits of the case and should have been canvassed throughout the appeal process.

“Even if the purported misapprehension was a ground of appeal, it does not lend any weight against the charges as they were one of corruption and not relating to misconduct with women.

“We would say that there is no fraud or suppression of evidence and neither is there new evidence before the court which merits the court to entertain a reopening or rehearing of the case,” he said.

Justice Alauddin said there was no nexus between the allegation of fabrication and the corruption appeal.

“The allegation was on fabrication of evidence in trying to get Datuk S. Nallakaruppan to cooperate by giving evidence on Anwar’s sexual misconduct with women whereas the charges in the corruption trial are that he abused his position in getting the police to obtain retraction letters from two individuals. Sexual misconduct is not an ingredient of the charges,” he said.

Justice Alauddin also said the court fail to see how the Federal Court’s decision can be said to have irregularities under the Courts of Judicature Act 1964 as alleged.

“We would reiterate that the findings and observations in the Federal Court pertaining to Zainur Zakaria’s (one of Anwar’s counsel) contempt proceedings have no bearing at all on the corruption appeal,” he said.

On the issue of Rule 137 of the Rules of the Federal Court 1995 which allows the Federal Court to exercise its inherent powers to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court, Justice Alauddin said the rule had been invoked by the Federal Court in a number of cases.

However, he said, it must be observed that its application was only in limited circumstances.

“If there were to be liberal application to Rule 137 then there would be chaos to our system of judicial hierarchy. Hence, we would think that it is on a case by case basis. Certainly it cannot be the intention of the legislature when promulgating Rule 137 that every decision of this court is subject to review.

“To do so would be against the fundamental principle that the outcome of litigation should be final,” he said.

Meanwhile, Justice Abdul Malek, in his 26-page judgment, dealt with the issue of jurisdiction raised in the preliminary objection by Attorney-General Tan Sri Abdul Gani Patail at the commencement of the proceedings as to whether the Federal Court had jurisdiction to hear Anwar’s review application.

Justice Abdul Malek said it cannot be said that the court does not have the jurisdiction, as that has been repeatedly decided in a number of authorities before this.

“The long line of cases certainly seem to support our thinking that we have jurisdiction and the power to reopen and review any matter decided by this court if there is any allegation of injustice or abuse of the process of the court.”

He said the court were of the view, which was unanimous, that the court have the jurisdiction to deal with Anwar’s review application and had accordingly on Sept 7 overruled the attorney-general’s preliminary objection and proceeded to hear the review application.

Justice Siti Norma, in her 17-page judgment, focused on the issue relating to the applicability and constitutionality of Section 94 (2) of the Courts of Judicature Act which requires all judgments written by appellate court judges to be first directed by the Chief Justice.

Counsel Karpal Singh had submitted that the said section was void, unconstitutional and ineffective as it infringes on the independence of the judges.

Justice Siti Norma said Karpal Singh, in his arguments, had drew the court’s attention to the format in which judgements in criminal appeals of the court were to be prepared and delivered.

She said that Karpal Singh took exception to the fact that the impugned judgement was embodied in two separate written judgements delivered by two members of the first quorum whilst the third member did not write any judgement at all.

“On its own, each of the two separate judgements dealt with separate subject matters, one on conviction and the other on sentence,” she said.

According to Karpal Singh, she said, neither of the judgement was complete.

She said Karpal Singh contended that each judgement should have dealt with conviction and sentence jointly rather than have the subject matters of the appeals split up as was done in Anwar’s appeals.

She also said Karpal Singh had questioned the constitutionality of Section 94 (2) contending that interference on the part of the senior most judge in the country to influence the outcome of the appeal, thereby impinging on the judiciary independence of individual judges.

Justice Siti Norma said it was the court’s considered opinion that Section 94 (2) and its proviso do not have the effect of curtailing the judicial independence of any individual judge when the Chief Justice determines who should prepare and deliver separate judgement in a criminal appeal or matter.

“To that extent, the applicant (Anwar) cannot rely on his objection to Section 94 (2) and its proviso to support his claim to have his appeals reviewed before another panel of this court,” she said.

On the issue of the two separate judgements, Justice Siti Norma said it was her considered opinion that it was a concurrent judgement concluded after all the three members had discussed the issues raised and unanimously concluded that the convictions stand.

“The fact that the concurrence of the other two members is not expressed in the judgement makes no difference to my finding as such concurrence has been more than adequately revealed in the language of the judgement,” she said.

The judges took about one hour and 10 minutes to read out their respective judgements.

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