Unexceptional case with exceptional interest

Why didn’t the prosecution appeal as soon as the verdict was given, which is normally the case, wonders Hishamuddin Yahaya.

Anwar and Wan Azizah embrace after the earlier verdict was announced – Photograph: Nurul Izzah

With regard to Dato Seri Anwar Ibrahim’s case, the prosecution decided to appeal against his acquittal. After a long lapse, following his acquittal, when the public thought that a fair hearing had been given and the verdict had put the case to rest, it suddenly hit the headlines once again.

The searching question is, why didn’t the prosecution appeal as soon as the verdict was given, which is normally the case? It only acted long after the verdict was pronounced when the complainant’s relative urged through the press that the government should appeal on behalf of the complainant.

We are prompted to ask whether the prosecution was interested in appealing or was it an afterthought. Taking into consideration that the prosecutor conducted the case, witnessed the entire proceedings, saw the demeanour of the witnesses and endured the unrelenting assault by the defence that eventually shred the prosecution’s evidence to pieces – surely, by then, the prosecutor lamed and injured, knew and accepted that it was a case for the defence. The DNA evidence, in particular, which the prosecution depended so much upon to secure a conviction, was ruled out as absolutely unreliable.

As an experienced lawyer and based on evidence adduced, the prosecutor could agree with the judge’s inevitable conclusion that the case had not been proved beyond reasonable doubt. With that, the prosecution had no case to appeal. In fact, it would have been against his conscience to do so.

Of course, an appeal by the aggrieved party is a fundamental right — whether it has merit or no merit, it is the right of the aggrieved party. Experienced lawyers will study the merits and demerits of the case before proceeding with the appeal. This is to save costs and the court’s time.

In borderline cases, an appeal is always encouraged if it is of constitutional importance or where it involves an important interpretation of the law. But in other cases, there must be a strong basis for the appeal – for example, if the judge had made a glaring mistake and the judgment delivered was contrary to the evidence given or if the judge was seen to be biased in his or her judgment.

Anwar is a political maverick. He is a politician feared by the ruling party for his unblemished track record and his commitment to the politics of the downtrodden. Fearless and selfless and known for outmanoeuvring his political opponents, he has won elections without much effort and is accepted as a potential PM by the people.

The ruling party, on the other hand, regards him as a malignant tumour that must be eliminated for its own good. Ironically, Anwar is more known internationally than any of the leaders in this country. What he said to me the other day is true: “They are restless as long as I am still around.”

Because this being Anwar’s case, with the prosecution finally appealing against his acquittal, it creates the public perception that this is a “forced appeal”. This perception is further strengthened by the fact that a senior counsel outside the AG’s Chambers has to be appointed to lead the appeal. Is it because no one in the AG’s Chambers believed that it was a justified action to take?

The appointment of someone from outside the AG’s Chambers is perfectly lawful and proper but rather unsavoury. Whether there is a precedent or not is not our concern. Under normal circumstances, this case would not be regarded as unusual and exceptional to warrant external expertise. Or is it because it has all to do with Anwar?

We cannot avoid several negative perceptions one of which is that the appeal is a joke. The appeal is a “forced appeal”. It is indeed a strange move initiated by the AG’s Chambers. Are there no senior Federal Counsels experienced enough to lead the appeal? Is it a complicated case? Are the AG’s boys happy to be bypassed this way, belittling their professional capability to handle a simple appeal as this? Above all, whose idea was it to appoint someone from outside the AG’s Chambers?

The most negative public perception is the outcome of the appeal. This is not to cast any aspersion on the court. But human beings being what they are, the build-up of the mindset is natural and unavoidable, more so if the appeal is seen by them as a “forced appeal”.

For the powers that be, it is not their concern or their doing; it will be projected as the decision of an “independent tribunal” (the court), for which they are not responsible and therefore cannot be blamed.

When the judgment is delivered, we hope that our judges will be mindful of the Hadith (saying of the Prophet s.a.w) that out of three judges, two are dwellers of hell.

Dato Hishamuddin bin Haji Yahaya, a practising lawyer and former MP for Maran, is a long-time contributor to Aliran.