When he opined on a subjective question, he favoured the complainant's credit; but when it came time to finally pronounce on the objective facts of the case, he decided for the defendant's innocence.
This tendency of High Court judge Mohamad Zabidin Mohd Diah (left), in the second sodomy case against Anwar Ibrahim, to run with the prosecution hounds and, then, turn around to find in favour of the defensive hares suggests parallels with United States Chief Justice John Roberts' deportment in the seminal healthcare case in America that was decided last week.
In the latter instance, Roberts is said to have sided with the conservatives and, then, weighed in with the liberals in the final 5-4 decision upholding President Barack Obama's landmark healthcare legislation.
From the way all the decisions on interlocutory applications in Sodomy II went in favour of the prosecution, and from the way oral arguments went before the United States Supreme Court in the healthcare case, the logical expectations were that Anwar would be found guilty and the US apex court would decide in favour of overturning Obama's key legislation.
In the final analysis, both Zabidin's and Roberts' eventual decisions underscore the point 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 social objectives which subjectively provide the greatest moral satisfaction.
All this may issue in judicial reasoning being incoherent, yet legally sound. Ahh, this blessed thing called the law!
Saiful a 'credible' witness
At first glance, there appeared to be a contradiction between what justice Zabidin had said at the end of the prosecution's case and how he arrived at his judgment on Sodomy II released yesterday.
Despite having opined that complainant Mohd Saiful Bukhari Azlan (right) was a credible and truthful witness at the end of the prosecution's case - a unwarranted presumption given that the judge had yet to hear the defence's case - justice Zabidin, in the end, held that he could not rely solely on the credit of Saiful to convict the accused.
There has to be scientific corroboration in a sexual crime case.
On grounds that the integrity of the DNA tests in Sodomy II was suspect, justice Zabidin held that it was unsafe to convict Anwar.
It was a decision that caused a great deal of surprise, given the way judge had decided on several applications the defence had made in the course of the trial.
Indeed, no opinion of justice Zabidin was more startling that when he said at the end of the prosecution's case that complainant Saiful was a credible and truthful witness.
That opinion, aired at the conclusion of the prosecution's presentation of the evidence, prejudged the case in a way fundamentally prejudicial to defendant Anwar's right to a fair trial.
If justice Zabidin confined himself to just saying he found the prosecution had made out a prima facie case upon which he was calling for the defence, he would not have violated a fundamental legal principle which here was finding in favour of the accuser's credibility before the defendant's version of things was heard.
They say only God, not humans, can draw straight with crooked lines.
But justice Zabidin has careened in Sodomy II to a legally straight conclusion from a tangled skein of legal reasoning.
Hurdle for prosecution in appeal stage
"The life of the law," wrote the brilliant early 20th century US Supreme Court justice Oliver Wendell Holmes, "has not been logic; it has been experience."
He elaborated: "The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed and unconscious, even the prejudices that judges share with their fellow men, have had a good deal more than the syllogism in determining the rules by which men should be governed."
How true!
Now that Sodomy II heads for the appellate round on a notice of intent to appeal filed by the prosecution on Jan 20 and on a petition and grounds of appeal expected to be filed by July 12, the core question is how the prosecution is to overcome a big hurdle.
Appellate courts do not allow findings of facts by a High Court judge to be overturned unless the latter has manifestly erred in drawing conclusions from the factual record.
The gravamen of this case, as justice Zabidin has rightly pointed out, is the integrity of the DNA testing.
The judge found it to be suspect. His superiors are not likely to tamper with that conclusion.
Sodomy II is as good as closed.
This tendency of High Court judge Mohamad Zabidin Mohd Diah (left), in the second sodomy case against Anwar Ibrahim, to run with the prosecution hounds and, then, turn around to find in favour of the defensive hares suggests parallels with United States Chief Justice John Roberts' deportment in the seminal healthcare case in America that was decided last week.In the latter instance, Roberts is said to have sided with the conservatives and, then, weighed in with the liberals in the final 5-4 decision upholding President Barack Obama's landmark healthcare legislation.
From the way all the decisions on interlocutory applications in Sodomy II went in favour of the prosecution, and from the way oral arguments went before the United States Supreme Court in the healthcare case, the logical expectations were that Anwar would be found guilty and the US apex court would decide in favour of overturning Obama's key legislation.
In the final analysis, both Zabidin's and Roberts' eventual decisions underscore the point 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 social objectives which subjectively provide the greatest moral satisfaction.
All this may issue in judicial reasoning being incoherent, yet legally sound. Ahh, this blessed thing called the law!
Saiful a 'credible' witness
At first glance, there appeared to be a contradiction between what justice Zabidin had said at the end of the prosecution's case and how he arrived at his judgment on Sodomy II released yesterday.
Despite having opined that complainant Mohd Saiful Bukhari Azlan (right) was a credible and truthful witness at the end of the prosecution's case - a unwarranted presumption given that the judge had yet to hear the defence's case - justice Zabidin, in the end, held that he could not rely solely on the credit of Saiful to convict the accused.There has to be scientific corroboration in a sexual crime case.
On grounds that the integrity of the DNA tests in Sodomy II was suspect, justice Zabidin held that it was unsafe to convict Anwar.
It was a decision that caused a great deal of surprise, given the way judge had decided on several applications the defence had made in the course of the trial.
Indeed, no opinion of justice Zabidin was more startling that when he said at the end of the prosecution's case that complainant Saiful was a credible and truthful witness.
That opinion, aired at the conclusion of the prosecution's presentation of the evidence, prejudged the case in a way fundamentally prejudicial to defendant Anwar's right to a fair trial.If justice Zabidin confined himself to just saying he found the prosecution had made out a prima facie case upon which he was calling for the defence, he would not have violated a fundamental legal principle which here was finding in favour of the accuser's credibility before the defendant's version of things was heard.
They say only God, not humans, can draw straight with crooked lines.
But justice Zabidin has careened in Sodomy II to a legally straight conclusion from a tangled skein of legal reasoning.
Hurdle for prosecution in appeal stage
"The life of the law," wrote the brilliant early 20th century US Supreme Court justice Oliver Wendell Holmes, "has not been logic; it has been experience."
He elaborated: "The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed and unconscious, even the prejudices that judges share with their fellow men, have had a good deal more than the syllogism in determining the rules by which men should be governed."
How true!
Now that Sodomy II heads for the appellate round on a notice of intent to appeal filed by the prosecution on Jan 20 and on a petition and grounds of appeal expected to be filed by July 12, the core question is how the prosecution is to overcome a big hurdle.
Appellate courts do not allow findings of facts by a High Court judge to be overturned unless the latter has manifestly erred in drawing conclusions from the factual record.
The gravamen of this case, as justice Zabidin has rightly pointed out, is the integrity of the DNA testing.
The judge found it to be suspect. His superiors are not likely to tamper with that conclusion.
Sodomy II is as good as closed.
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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