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Tuesday, October 11, 2016

Sodomy II review: Sri Ram criticises Shafee for holding roadshows


12.45pm: Wanita PKR chief Zuraida Kamarudin tells the crowd that PKR deputy president Azmin Ali conveyed his regards and apologies for being absent at the Federal Court today.
Zuraida says Azmin is accompanying his mother who is undergoing a brain surgery.
On the sidelines, PKR volunteers distribute free packed lunches to the crowd.
12.35pm: Sri Ram points out to the argument of political conspiracy and whether the court had been aware of the closeness of Shafee with the party (Umno).
"He withheld the information and that he is not an independent public prosecutor himself. He discussed evidence which was held in camera."
This was not an event by the Bar Council but a political party, he submits.
"His conduct with other members of the political party. He is the puppet and the puppet master is elsewhere. The roadshows showed it. It is supportive evidence," Sri Ram said.
12.30pm: Sri Ram criticises Shafee for holding roadshows after winning the case.
He says the DPPs at the Attorney-General's Chambers are professionals as they do not hold roadshows.
Justice Zulkefli asks Sri Ram on the relevance of this argument.
Sri Ram explains that Saiful met an Umno leader and Shafee was also in the same house.
"The roadshow was organised by Khairy Jamaluddin, the head of Umno Youth," he adds.
12.20pm: Now Sri Ram focuses on the sample retrieved from Saiful after 56 hours of the incident.
The sample should be degraded, he says, but the prosecution submitted there was no degradation.
"Our case is that there should be degradation and we submitted in all probability that this was not the sample tested by Pw5 (chemist Dr Seah Lay Hoong)"
He adds that both the expert witnesses from the prosecution and defence testified there should be degradation but now the court is now putting the burden on Anwar to prove there was degradation.
Sri Ram praises the head of prosecution at the High Court stage for conducting the case professionally but observes that the case had taken a different heading when the appointed private practitioner Shafee took over the matter.
12.10pm: PKR vice-president and Anwar's daughter, Nurul Izzah, takes time to update the crowd on proceedings inside the court room.
She says Anwar during the 15-minute break also took the opportunity to meet his grandchildren.
"I also gave priority to address the loyal supporters who have been with Anwar since the past 18 years.
"Without the rakyat's support, it will be impossible for us to free Anwar," she says.
"The gathering here today brings hope to the man who has been imprisoned for 609 days and in the past, more than 10 years of his life behind bars," says the Lembah Pantai MP.
Nurul Izzah, as such, also announces the launch of a new online petition at freeAnwarnow.com
"He stands for our values, he stands for our future, he stands for a better Malaysia...," she says, adding that the people should be proud Anwar was imprisoned for defending his moral principles.
The crowd remains in high spirit despite a light drizzle.
12.05pm: Sri Ram says the Federal Court's decision was a departure from established law that a person is innocent until proven guilty.
"There is no carpet on 11-5-1, then the offence never took place," he submits.
The senior lawyer questions whether the alleged offence really took place.
"There is a break in the chain," Sri Ram says.
11.45am: Sri Ram points to the error in the Federal Court judgment which had said that Saiful brought the KY jelly because of past painful experience.
He says this was not in Saiful's evidence that Anwar allegedly ordered Saiful to bring the KY jelly.
Sri Ram submits that the Federal Court accepted then prosecutor Muhammad Shafee Abdullah's statement from the bar when there was none to suggest it was written in Justice Arifin's judgment.
He then argues on the integrity of the crime scene which is of primary importance.
"The scene has no carpet as the carpet is at the adjacent room (unit). The sodomy incident was at 11-5-1 but the carpet was found in 11-5-2."
Sri Ram submits that there was no positive evidence found on the carpet or the towel.
"The integrity of the crime scene is the most compelling evidence if he described it took place on the carpet," he adds.
11.40am: Court resumes proceeding.
Justice Zulkefli asks whether the lawyers submitted their arguments at the Court of Appeal and Federal Court.
Sri Ram replies that the Court of Appeal stage was an appeal by the prosecution.
"This point was not made by the prosecution. I addressed it at the Federal Court," he says.
It is a serious breach of the rules of natural justice, he adds.
11.05am: The court takes a 15-minute break.
10.55am: Sri Ram says if previous sodomy incidents are accepted, there must be cogent evidence that those other episodes did occur.
"Applying previous events should be excluded as it is a breach of the fundamental rules of natural justice.
"The Court of Appeal and the Federal Court used it to find Saiful credible.'
It is procedurally unfair for the court to consider this, the senior lawyer adds.
10.40am: Sri Ram argues that this court should ensure there is no injustice done to the accused and there is no breach in the rule of natural justice.
If the applicant manages to show miscarriage of justice, Rule 137 would allow for a review of the case, he submits.
Sri Ram states that in the High Court, it was adduced as evidence a police report made by Mohd Saiful Bukhari Azlan where he alleged previous acts of sodomy without his consent in the past.
He adds that Saiful said the last occasion it happened was in June 26, 2008.
"(The late) Karpal made an objection that there was only one charge.
"My client hoped that the allegation of previous sodomy were not considered but the High Court judgment accepted as evidence of other references of incidents following the testimony by a Hospital Kuala Lumpur doctor. Despite this, my client was acquitted."
However, Sri Ram points out to Justice Arifin's judgment which noted previous encounters (of sodomy).
"The previous encounters were used by the Court of Appeal and Federal Court to say that Saiful was credible. In any criminal case, similar fact evidence is not admissible unless Section 14 and 15 of the Evidence Act are considered."
10.30am: A crowd of about 50 people gathers at the extreme right end of the Federal Court complex, in an apparent support for Saiful.
Salleh Ismail, who claims to represent Justice for Saiful NGO, leads the crowd to chant "Hancur PKR" and "Mati PKR".
He rants on about how Anwar's supporters were only harping on how the sodomy allegation was allegedly politicised.
He also claims lawyers has failed to explain how Anwar's sperm was found inside Saiful.
10.25am: Sri Ram again points out to Rule 137, citing the Asean Paper Mills case as an authority for the court to use its inherent jurisdiction to do justice and prevent injustice.
He revisits the earlier judgment by Justice Zulkefli that Rule 137 should be used sparingly.
Justice Zulkefli asks whether there should be a difference between civil and criminal cases, to which Sri Ram submits in the affirmative by saying that in criminal cases it involves life and liberty of the person, and whether the conviction was safe.
10.15am: After a 30-minute discussion with the other judges, Justice Zulkefli says the court finds  no merit in recusing themselves.
"We do not think the two paragraphs reflect that we are bias to the accused in the case.
"The two paragraphs referred to are based on the application made. We have given an undertaking of giving the applicant a fair hearing," he said.
Sri Ram obliges but proceeds to read Rule 137 of the Rules of Court 2012. He reminds the judges on preventing an injustice being done by the court.
He says the prosecution was the beneficiary of the product of a pre-arranged plan involving members of the government at the highest level.
9.32am: Anwar’s lawyer Gopal Sri Ram points to the court's judgment where the existing apex court bench had earlier rejected the calling of former Commercial Crime Investigation Department (CCID) director Ramli Yusof as defence witness.
He says this same five-member panel should not hear today’s review as they had already perused the record of the trial.
"We are going to argue the principle of natural justice and to having a different panel."
Anwar had earlier made an application that a total of 13 judges should not take part in today's hearing. This included the existing judges.
Justice Zulkefli said the panel did not touch on the merits of the case but the judgment was made in context that Ramli should have been called in as witness earlier.
Sri Ram says the court in the judgment argued that it had perused the appeal court records and it came to the conclusion there was a fair trial and Anwar's lawyers are worried that the accused will not be given a fair review.
Put simply, Sri Ram says this panel had earlier decided on the merits of the case in rejecting the defence’s application to call Ramli as the apex court ruled they had perused the records of the trial proceedings, and concluded that it was fair.
Hence, Sri Ram says the bench had gone into the merits of the case and there is concern that Anwar would not be given a fair review hearing.
The senior lawyer however says he is okay if the bench gives an undertaking that his client is given a fair hearing in the review.
DPP Ahmad Kamal says no merits of this case is being considered in the last decision by the bench.
"There is no statement of bias and rightfully this bench should hear the review," he says.
Justice Zulkefli calls for a short adjournment as he consults the other judges.
9.30am: Court proceeding begins with Chief Judge of Malaya Zulkefli Ahmad Makinudin leading the five-member bench.
Sri Ram introduces the parties.
9.26am: Two of Anwar's grandchildren enter the courtroom accompanied by their parents.
The Federal Court registrar reminds that children are not allowed to enter the courtroom. Anwar says that they have come to greet him and they would leave soon after.
9.24am: As Anwar steps into the accused dock, he jokes, "Upgraded first class", referring to his new seat.
He asks about Paul Ryan, the Republican politician who recently withdrew his support for presidential candidate Donald Trump.
Among the politicians in court are PKR leaders Fauzi Abdul Rahman, Saifuddin Nasution, Dr Tan Kee Kwong, First Admiral (R) Mohd Imran Abdul Hamid.
9.23am: PKR-linked NGO Jingga 13 coordinator Fariz Musa is no stranger to protests and demonstrations.
For the past four months, however, he has been recuperating from an operation in which his right leg was amputated.
Outside the Federal Court today, the PKR supreme council member says he will not miss the opportunity to rally in solidarity with Anwar, despite not fully recovered and still confined to a wheelchair.
"I came all the way from Terengganu to support Anwar, with my father and younger brother," says Fariz, who was greeted by an almost endless stream of well-wishers and comrades.
9.20am: Outside the courtroom, PAS Pokok Sena MP Mahfuz Omar says a decision in favour of Anwar will be an impetus to “another wave of people's uprising”.
He tells Malaysiakini this is more so with the reconciliation between Anwar and former premier Dr Mahathir Mohamad.
"I will be very thankful if Anwar is (eventually) freed. It will allow him to return and lead the opposition," says Mahfuz in front of the Federal court complex.
Other lawmakers seen with him include Seputeh MP Teresa Kok and Kapar MP G Manivanan.
9am: Anwar Ibrahim walks into the courtroom accompanied by Prison Department guards. He is seen consulting with lead defence lawyer Gopal Sri Ram at the front table on the left side of the court, an area set aside for counsels.
Dr Wan Azizah Wan Ismail walks in. Anwar kisses his wife’s forehead and also eldest daughter Nurul Izzah's. He shakes hands with his American lawyer Kimberly Motley and a representative from the Inter Parliamentary Union and Lawasia, Mark Trowell.
Wan Azizah quips to reporters who are seated just behind the police table inside the courtroom that "this is the only case getting a lot of attention in Malaysia".
8.35am: The bench that will hear the review comprises Chief Judge of Malaya Zulkefli Ahmad Makinudin, Chief Judge of Sabah and Sarawak Richard Malanjum. The other three judges are Federal Court judges Hasan Lah, Abu Samah Nordin and Zaharah Ibrahim.
The prosecution team is led by the Trials division head of the Attorney-General’s Chambers Ahmad Kamal Md Shahid along with Awang Armadaya Awang Mahmud (deputy head of appeals division) Tengku Amir Zaki Tengku Abd Rahman and Wan Shaharuddin Wan Laden.
Those in Anwar's defence team are Sangeet Kaur, N Surendran, Sivarasa Rasiah, Latheefa Koya, Melissa Sasidaran and Shahid Adli Kamaruddin. The team will be led by former Federal Court judge Gopal Sri Ram.
8.30am: Outside the court complex, PKR leaders take turns to address hundreds of Anwar's supporters. Among others, they include party vice-president Tian Chua, Wanita chief Zuraida Kamarudin and deputy Youth chief Afif Bahardin.
Afif tells the crowd to not fall for any possible provocation. Zuraida says Selangor PKR has also prepared breakfast and lunch for the supporters.
7.46am: A bus filled with Anwar supporters arrives and the group gathers in front of the Palace of Justice carrying PKR and Selangor state flags.
The whole court complex is under lockdown with makeshift metal fence erected around the huge complex.
Police stop national laureate A Samad Said from entering the building.
7.34am: All eyes are on an expected five-member Federal Court bench in Putrajaya today as former opposition leader Anwar Ibrahim's review application to set aside the conviction and sentence for Sodomy II by another apex court panel will be heard.
It is one year and eight months since Chief Justice Arifin Zakaria led a five-member Federal Court bench to uphold the conviction and five years' sentence on Anwar, which the 68-year-old politician is currently serving at the Sungai Buloh prison.
This rare Federal Court review will essentially determine if the bench led by Justice Arifin, who wrote the unanimous decision, had erred in its decision to maintain the conviction and sentence.
If this new bench today determine that the earlier bench had erred, it can order Anwar to be released and thus allowing the PKR de facto leader to contest in the 14th general election, which is widely expected to be held next year. Or it can maintain the existing five-year sentence on Anwar, as the prosecution has not filed a review of the sentence.
Anwar's defence team will be led by former Federal Court judge Gopal Sri Ram while it remains to be seen who will lead the prosecution team as attorney-general Mohamed Apandi Ali, who had earlier indicated he would lead the prosecution, is said to be overseas.
Anwar has maintained that the sodomy charge is a political conspiracy against him and the Kuala Lumpur High Court acquitted him on Jan 9, 2012. However, a three-member Court of Appeal overturned the decision and convicted him on March 7, 2013, just before Anwar was to contest the Kajang state seat to pave the way for him to be Selangor menteri besar.

The appellate court was delivered immediately after the submissions from the lawyers on the eve of Anwar’s nomination for the seat. Anwar said the rush to judgment by the Court of Appeal was to stop him from contesting the by-election. This controversial Court of Appeal decision was upheld by Justice Arifin on Feb 10, 2015.
Last night, Anwar's family held a solat hajat (special prayers) at the family home in Bukit Segambut. Also present was Anwar's wife and PKR president Dr Wan Azizah Wan Ismail.
Security is tight at the Palace of Justice as a limited number of seats in the courtroom are given out, while outside, Anwar's supporters are expected to gather in support of the former opposition leader. Malaysiakini is bringing the proceedings live.
[More to follow]


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