COMMENT Why did Anwar Ibrahim elect to give a statement from the dock rather than from the witness stand, where he would then have left himself open to cross-examination?

This is the question being asked in the wake of his entering his defence yesterday on a charge of sodomy in the Kuala Lumpur High Court.

Doubtless, negative inferences would be made about this strategy, what with he having declined to swear on the Quran two years ago this month when his accuser did so in the feverish prelude to the Permatang Pauh parliamentary by-election.

Anwar gave his reasons for his legal team's strategy in his unsworn statement from dock.

NONEIn a nutshell, he said the bias, for which he adduced substantive grounds, of the presiding judge in his case, Mohamad Zabidin Diah, and of the Court of Appeal judge Abdul Malik Ishak, who sat in his appeal to recuse justice Zabidin, compelled this strategy.

Anwar's strategy only served to reinforce the opinion that the law is not an exact science but a process of reasoning in which diverse answers might all be right, depending on the perspective and objectives that subjectively provides the highest moral satisfaction.

However, there can be no subjectivity about the point that Anwar made with eloquent poignance: that justice Zabidin, in finding accuser Mohd Saiful Bhukari Azlan to be a truthful witness at the conclusion of the prosecution's case, had breached an inviolable rule of natural justice.

A presiding judge should not pronounce on the complainant's credibility until he has heard the accused person's defence.

Rudely surprised

Anwar sought recourse in the Court of Appeal to recuse justice Zabidin for his prejudgment. The appellate court took five minutes to dismiss the matter on grounds that the order appealed against was not a final order.

But a month later, a written judgment of the appellate court signed by justice Malik was delivered to the defence team.

Anwar, in his statement from the dock, said he was rudely surprised to find that whereas the appellate judges had been mute on the day of the appeal on July 6, there arrived a month later a written judgment by justice Malik that did not address the grounds of the appeal for recusal, but instead it was what Anwar described as an ad hominem attack on his character.

Anwar cited support from Indian case law for his argument that judges should not engage in attacks on character, especially when the person assailed has not been availed the right of reply.

Anwar's lyrical advertence to jurisprudential and literary sources on the need to hear out the defence before pronouncing impartial judgment was one of the high points of his statement from the dock.

Anwar said the conduct of judges Zabidin and Malik afforded him cogent reasons to prefer an unsworn statement from the dock rather than from the witness stand where he would be subjected to cross-examination superintended by a judge of proven imbalance.

Anwar's arguments have to be heard in all their linear logic and eloquence to grasp their overall cogency.

All in all, he made a compelling case for his legal strategy which was basically to call the case against him a politically motivated prosecution designed to end his career as parliamentary opposition leader and a rerun of a similar case against him 13 years ago when he was sacked as deputy prime minister and denigrated and beaten while in jail.

 

TERENCE NETTO has been a journalist for close on four decades. He likes the occupation because it puts him in contact with the eminent without being under the necessity to admire them. It is the ideal occupation for a temperament that finds power fascinating and its exercise abhorrent.


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