Federal Court Upholds Anwar’s Conviction For Corruption General
Bernama.com,
September 15, 2004
http://www.bernama.com/bernama/v3/news_lite.php?id=92686
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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