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Wednesday, February 10, 2010

Anwar Ibrahim Sodomy II – Karpal claims judge lied

KUALA LUMPUR: Lead defence counsel Karpal Singh accused the judge presiding over the Datuk Seri Anwar Ibrahim sodomy trial of being a liar.

Karpal on Wednesday argued that trial judge Justice Mohamad Zabidin Mohd Diah was lying when he said that evidence in relation to a bed in the Desa Damansara condominium had been given in open court.

The judge had said last Friday that he did not find any indication of contempt of court in a photograph showing Anwar’s accuser Mohd Saiful Bukhari Azlan pointing to a bed that was published in a Malay daily.

Karpal is asking Justice Mohamad Zabidin to recuse himself for not cautioning or citing the newspaper for contempt for publishing the photograph.

The defence maintains that the visit to the bedroom and condominium was part of proceedings held behind closed doors.

“There is nothing in the notes of proceedings or audio before this court to show that this detail was ever mentioned in open court.

“With much respect, your lordship did not tell the truth. We translate, you are lying. You lied and it can and has been proven that you are not being honest in court. You can’t be impartial and you can’t be unbiased.

“On those grounds, you have no alternative but to step down. It is not a mere perception but a reality. You stand condemned by your own ruling,” Karpal submitted in the recusal application before a packed courtroom Wednesday.

Anwar had on Monday applied to recuse the trial judge on the grounds that his two rulings concerning news reports of the case had raised an element of bias.

The Opposition leader, 63, claimed trial to sodomising his former aide, Mohd Saiful, 24, at the Desa Damansara Condominium in Jalan Setiakasih, Bukit Damansara, here between 3.01pm and 4.30pm on June 26, 2008.

Karpal said: “In this application, what is fundamental, I say without mincing my words, you are guilty of not having stated of what is the truth.”

“It is not the truth and it is a lie,” he said firmly, shocking the courtroom.

He said his role was to defend his client to the best of his ability, adding that justice must “manifestly, expressedly and undoubtedly” be seen to be done.

“It is no point blaming the foreign press for (writing about) our legal system if a judge does not deliver what is expected of him in a trial. The judiciary of this country must redeem itself in the eyes of international (observers),” he said.

He said there was no blanket immunity for judges.

“You have forfeited the right to sit down on that chair and proceed to hear the trial,” he said, stunning everyone in court.

On the trial judge dismissing his application summarily and ruling that the two articles with allegedly misleading headlines published by Utusan did not have the intention of being mischievous or to disrupt proceedings, Karpal said the judge could not come to such a conclusion on behalf of the newspaper.

Citing the Judges Code of Conduct 2009, enforced on July 1 last year, Karpal said the judge could also be subjected to disciplinary proceedings if he was found to have contravened the ethical requirement to perform his judicial duty without bias.

Lead prosecutor Solicitor-General II Datuk Mohd Yusof Zainal Abiden, however, submitted that no one should carelessly argue about impartiality of a judge.

DPP Mohd Yusof said the concerned party should prove that a judge had a pecuniary interest in order to disqualify him from further hearing the trial.

“The real danger of bias has to be examined in the context of the complaint. There is real danger of bias when the public concludes your lordship will be unfair to the parties by not deciding based on evidence adduced in court, or your lordship decides on erroneous grounds,” he said in asking the court to dismiss the disqualification application.

On the photograph caption, DPP Mohd Yusof said it only referred to a room where the offence allegedly took place and that there was no dispute that the complainant went there.

“To say your lordship lied is a very strong word. You (lawyers) have to be polite. Certain ethics must be preserved,” he said.

On the contention that there were two misleading headlines in Utusan over the sodomy trial, DPP Mohd Yusof said it was “proven” through the notes of proceedings that the concerned reporter had reported the truth and that the defence owed an apology.

Justice Mohamad Zabidin set Feb 18 to deliver his decision on the recusal application, saying that he needed time to study the submissions and case law provided by both parties.

Blow-by-blow account of today's proceedings:

11.25am: Court is adjourned. Justice Mohamad Zabidin will deliver his decision on recusal application on Feb 18.

11.12am: Justice Mohamad Zabidin said he is unable to decide today. Court stands down as judge wants to see both parties in chambers to discuss on a date to deliver a decision on recusal application.

11.01am: Karpal begins responding. “If you are referring to a room, why are you pointing to a bed?” he questioned.

11.00am: Mohd Yusof describes the Utusan Malaysia "blunder" as remeh (frivolous) and expresses hope that the application to recuse the judge will be dismissed.

10.39am: He said the caption for the photograph, “Menunjukkan katil di mana tempat kejadian berlaku” does not mean alleged sodomy took place on the bed. He added that the caption meant to refer to the master bedroom where the alleged incident happened and not the bed.

10.37am: He said the Utusan Malaysia “blunder” was not committed in court and subsequently, the judge not responding to it, was not an outright dismissal. He added that it was erroneous to give an impression to the public that the judge had dismissed the motion. Quoting from the court transcript, Mohd Yusof said: “Apa sebab sebab kamu berhenti kerja?” “Sebab sebenar, saya tidak mahu diliwat lagi.”

10.20am: Mohd Yusof said reasons to disqualify the judge must come from the trial itself and not over minor things like newspaper reports adding that the complaint against Utusan Malaysia is not an issue.

He said a decision, which is adverse to one party, is not grounds to disqualify the judge. He added earlier that personal bias is when there is personal friendshp or animosity by the judge with anyone involved in the case.

“That is not the case here,” he said.

10.10am: Lead prosecutor Solicitor-General II Datuk Mohd Yusof Zainal Abiden starts addressing the court.

10.05am: Karpal said complaints in Anwar’s affidavit is over a photograph which appeared on the frontpage of Utusan Malaysia and was captioned as Mohd Saiful pointing out to the judge the bed where he was sodomised.

Karpal added there was nothing in the proceedings which mentioned “bed” as a detail during the trial.

He added that Justice Mohamad Zabidin needed to step down as he was quoted as saying that the details of the bed had been made in open court when the actual proceedings never mentioned anything about a bed.

He also questioned Justice Mohamad Zabidin’s conclusion that the Malay daily was not attacking Anwar with its headline: “Berhenti kerana tak mahu diliwat lagi”.

9.55am: In addressing Justice Mohamad Zabidin, Karpal said that impartiality must exist when presiding over a case and a judge must be honest and beyond suspicion. "Judges have the fundamental duty to be impartial, regardless of race, religion and ethnicity," he said.

9.45am: Karpal said the prosecution has replied to Anwar’s application to recuse the judge Justice Mohamad Zabidin Mohd Diah from presiding over the trial, which in turn has been replied by the defence on Wednesday.

“Let us not waste time with the proceedings. We want to go ahead,” he tells the court.

9.40am: Court is in session.

9.21am: Anwar Ibrahim’s lead counsel Karpal Singh arrives at court. Earlier, the courtroom was slowly filling up as police checked those who wanted to enter.

Related Stories:
Recusal hearing today
Saiful files report over death threat
Anwar wants judge removed
I didn’t pass motion for two days, court told
I idolised Anwar, says Saiful
Saiful went to hospital two days after alleged sodomy, court told
Court complex a hive of activity
Sodomy II: Bloggers told to be ethical in reporting
Anwar hit on me at condo, says Saiful
Anwar's lawyers meet Alauddin to seek early hearing

http://thestar.com.my/news/story.asp?file=/2010/2/10/nation/20100210093057&sec=nation

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