Advocate and Solicitor, High Court in Malaysia
is a fallacy to interpret the recent acquittals of Dato'
Seri Anwar Bin Ibrahim ("Anwar") and Sukma Darmawan
Sasmitaat Madja ("Sukma") by the Federal Court
on sodomy charges as a return to independence of the judiciary
in Malaysia. In fact, it would be dangerous to do so.
Anwar was charged
for sodomising Azizan Bin Abu Bakar ("Azizan") on one
night between the months of January and March 1993 at Tivoli Villa.
Sukma was charged with two offences for abetting Anwar's act with
Azizan, and for sodomising Azizan on that same night. Anwar and
Sukma were tried jointly. They were convicted by the High Court
("the sodomy trial"). Anwar was sentenced to 9 years'
imprisonment, to run consecutively after the expiry of his sentence
of 6 years' imprisonment for corrupt practices ("the corruption
trial"). Sukma was sentenced to 6 years' imprisonment and
2 strokes of the whip for each of the 2 charges. However, his
sentences of imprisonment were to run concurrently. The Court
of Appeal subsequently affirmed this decision.
The Federal Court
on 2 September 2004 decided, by a majority of 2-1, to set aside
the convictions arrived at, in the sodomy trial. Abdul Hamid Bin
Haji Mohamad FCJ and Tengku Baharudin Shah Tengku Mahmud JCA formed
the majority judgment. Rahmah Bt Hussain FCJ was in the minority.
The majority observed that this case was "different from
any other case that we know of". They also commented that
there seemed "to be so many unusual things that happened
regarding the arrest and the confession" of Sukma.
Since 7 June 1999,
when the sodomy trial began, many ordinary Malaysians voiced the
opinion that the case was unusual and were disturbed by the decision
to convict Anwar and Sukma.
Some of the disturbing
features of the case are as follows:
In the sodomy trial, Azizan
repeatedly contradicted himself. For example, in respect to the
date of the alleged incident, the prosecution amended the charges
twice in attempts to "fit" the facts to Azizan's testimony.
The original charge had the date put down as "one night in
the month of May 1994". It was then amended to "one
night in the month of May 1992" and subsequently to "between
the months of January and March 1993".
contradicted his statements. In the corruption trial, Azizan
said that Anwar did not sodomise him after May 1992. In the
sodomy trial, he backtracked his statement.
Azizan did not
lodge any police report of the alleged incident although he
said that he had been sodomised some 10 to 15 times at various
places. He never once complained about it until 1997. He did
not resign from his job with Anwar subsequent to his assault.
In fact, after he left his job, he went back to work for Anwar's
saw Anwar on the date of the alleged incident at Tivoli Villa,
he did not leave immediately or resist; rather, he entered the
The trial judge
at the sodomy trial observed that Azizan was very evasive and
appeared not to answer simple questions put to him.
ASP Zull Aznam,
a police officer, testified that Azizan had told him that it
was on the promise of the payment of money that he made those
allegations against Anwar.
Azizan was not
sent for a medical examination to corroborate his allegations.
There was no credible and independent medical evidence of Azizan
being sodomised. It is explicit that medical evidence is crucial
and essential as corroborative evidence in sexual offences.
Sukma was abused,
cruelly treated and tortured into making a confession to a Magistrate.
He agreed to make a confession on the 12th day of his detention
upon being told that he would be released after making a confession.
He confessed to, among other things, committing acts of sodomy
with Anwar and Azizan. This confession was accepted by the High
Court and used as part of the grounds to convict both Anwar
and Sukma. The Federal Court however found as a fact that the
confession was not voluntarily given and was therefore inadmissible
Sukma was remanded
for 14 days at a stretch by way of a Court order. It is not
a common practice to grant such an order. Moreover, the order
was not made by a Magistrate at the Magistrates' Court, as is
usually the case. Sukma was brought before a particular officer
at the High Court, one Tuan Mat Zaraai, who gave the order.
Sukma was not
accorded a lawyer of his choice. A lawyer by the name of Mohd
Noor Don ("Don") was apparently appointed by the police
(through SAC-1 Musa ("Musa"), the Chief Investigating
Officer) for Sukma. Musa informed Sukma that if he used the lawyer
picked by Musa, he would be charged for a less serious offence
and sentenced to 3 months' imprisonment only, whereas if he appointed
his own lawyer, he would be charged for a more serious offence.
The lawyer appointed
by Sukma's sister, Ganesan a/l Karupanan, attempted to meet Sukma
during his detention on numerous occasions but was not allowed
to do so.
tendered Sukma's confession "in mitigation of sentence"
in respect of a charge of gross indecency where he pleaded guilty.
He was sentenced to 6 months' imprisonment on 19 September 1998.
According to Sukma, his plea of guilty was not voluntary and was
induced by the authorities.
leaving aside the substantive defences of alibi, political motivation,
character assasination and conspiracy to fabricate evidence against
Anwar and Sukma, any reasonable, apolitical observer of the sodomy
trial would have concluded that there was reasonable doubt raised
against Azizan's allegations. The unusual circumstances surrounding
Sukma's earlier charge of gross indecency and his confession lends
further suspicion to the authenticity of the allegations against
Anwar and Sukma at the sodomy trial.
was a real threat to the establishment. This explains the improper
motivation for the charges made against him. Ask any taxi-driver
or man-on-the-street in Malaysia and few will deny that the charges
were politically motivated. To lend a semblance of credibility,
a stranger to politics had to be sacrified and Sukma the lamb.
sodomy chronicles from the High Court to the Federal Court illustrate
that the law and legal principles, however sound, can be politically
prosecutors are not free from blame either. Anwar's complaint of
political persecution and conspiracy to frame him with trumped-up
charges is to a large extent vindicated by the strong general statements
of the Federal Court.
he conducted the proceedings, in particular the interrogation
of the appellant and the speedy finding of guilt without even
allowing the appellant to call any witness, gave the picture that
he was behaving as though he was acting as counsel for the two
prosecutors in the motion."
statements have to date not been refuted or expunged from the records.
The Federal Court went on to hold that the evidence filed by Anwar
that the prosecutors had attempted to fabricate and obtain false
evidence disclosed a prima facie case justifying the application
to disqualify them. This case also illustrates how the High Court
took it upon itself to shackle Anwar and his defence team from advancing
the best possible defence available to Anwar.
appearance of complicity between the judiciary, police, prosecutors
and a lawyer (Don) shows how the legal process can be abused to
produce unfair trials and convictions. It is precisely for this
reason that the International Bar Association's Minimum Standards
of Judicial Independence (1982) defines substantive independence
of the judiciary. to mean that when discharging his/her judicial
functions, a judge should be subject to nothing but the law and
the commands of his/her conscience while discharging his/her judicial
also have the vital duty to uphold the dignity of their office .
They are not to initiate or continue prosecution when an impartial
investigation shows the charge to be unfounded. They are to refuse
to use evidence obtained through unlawful methods that constitute
a grave violation of the suspect's human rights, especially methods
involving torture or cruel, inhuman or degrading treatment or punishment.
They should be able to take the necessary steps to ensure that those
responsible for using such methods be brought to justice. Sukma's
confession is a case in point.
and Sukma did not have a fair trial in accordance with international
human rights standards. The standpoint of the accused is relevant
in deciding this. The test is set out in the case of Incal v. Turkey
 ECHR 48 (9 June 1998):
whether there is a legitimate reason to fear that a particular
court lacks independence or impartiality, the standpoint of the
accused is important without being decisive. What is decisive
is whether his doubts can be held to be objectively justified."
Federal Court's decision to acquit was correct. But it is arguable
that the underlying motivation for the decision is purely "legal".
The judiciary was sadly torn apart in 1988. Contrary to popular
belief , the Federal Court's decision does not mark the rebirth
or rejuvenation of the judiciary. The decision freeing Anwar was
merely a decision that should have been given by the High Court
some five years ago.
and Sukma are free at last. There is doubt however whether the institutions
and other actors who played a vital part in the sodomy chronicles
will ever be truly free of unfair politicisation.