Evidence, or the lack of it

Christopher Fernando told the court that Anwar Ibrahim was placed in a most unusual situation where the defence had to prove his innocence instead of the prosecution having to prove his guilt.


Raja Petra Kamarudin

There are those who are of the view that Najib Tun Razak should first be cleared of any involvement in the Altantuya Shaariibuu murder before he be allowed to take over as Prime Minister. And the way to do this, they feel, would be through a Royal Commission of Inquiry.

Anwar Ibrahim was once convicted of corruption and sodomy and was sentenced to 15 years and seven months in jail not because there was evidence he had in fact committed a crime. The court found him guilty because there was just an allegation he had committed a crime and Anwar was not able to prove otherwise.

In short, the burden of proof was placed on Anwar, the accused, and not on the prosecution. And Anwar was made to prove his innocence instead of the prosecution having to prove his guilt.

Now, if they apply the same standards of burden of proof on Najib as they had on Anwar, not only would Najib not be able to become the next prime minister, as what happened to Anwar, but he would also be sent to jail, as what happened to Anwar.

The issue here is not the evidence of a crime having been committed but the lack of evidence of a crime not having been committed. That was how they denied Anwar the job of Prime Minister and sent him to jail. Should that not also be what Najib is subjected to?

Anyway, to demonstrate what I mean, I am republishing below the court transcripts of Anwar’s trial of 25 March 2003 as argued by his lawyers.


The burden of proof is on the prosecution but was shifted to the defence instead

An accused person is not required to prove his innocence. Instead, his accusers have to prove his guilt. In Anwar Ibrahim’s case, however, he was placed in an unenviable position of having to prove his innocence.

Anwar was charged for ‘committing sodomy one night, at 7.45pm, between 1 January 1993 and 31 March 1993’. Even with such a wide and vague charge, Anwar still managed to provide alibis for all those 90 days except one.

Yet, the judge still insisted that Anwar had not established his alibi. But the judge was not able to say which one of those 90 days Anwar’s alibi had not been established.

“All an accused person has to do is to create reasonable doubt,” said Christopher Fernando. “He does not have to prove anything or establish his defence beyond a reasonable doubt.”

“He is not required to prove anything conclusively with respect to his defence of alibi. But the judge held he had to and the he had not proved it 'conclusively'.”

“Conclusive proof is a standard even higher than beyond reasonable doubt.”

Fernando then told the court that Anwar was placed in a most unusual situation where the defence had to prove his innocence instead of the prosecution having to prove his guilt.

“This is most unusual; alien to the law,” argued Fernando

“All Dato’ Seri Anwar had to do was to raise reasonable doubt.”

“Between 4 February and 31 March 1993, Dato’ Seri Anwar managed to establish his alibi, except for 19 February 1993, said the judge.”

“There was no rebuttal at all by the prosecution to counter Dato’ Seri Anwar’s alibi.”

“The prosecution failed to observe this very basic principle of law.”

“Dato’ Seri Anwar had to prove he was not in the Tivoli Villa in the 90 days between 1 January and 31 March 1993.”

“Instead, it should have been the prosecution’s task to prove that he was there.”

The burden of proof was on the prosecution, argued Fernando. But in Anwar’s case it was the other way around.

“In spite of the monumental task to prove Dato’ Seri Anwar was not there (Tivoli Villa) the defence still managed to do so.”

“Yet the judge still insisted the defence did not establish his alibi.”

“But the judge did not say which one day over the 90 days the alibi was not established.”

“From 1 January 1993 to 3 February 1993 the apartment was under renovation.”

“So, from 4 February 1993 onwards, the alibi needs to be proven, and it was proven.”

“Witnesses were brought to testify and documents submitted to support the alibi.”

“The judge’s mind was cluttered. He was very confused and could not see the wood for the trees.”

“Tivoli Villa was not occupied. It had no furniture and was under renovation and the prosecution never rebutted this alibi.”

“The prosecution said Sukma had free access to the apartment but this was never proven.”

Azizan Abu Bakar had testified that he had been sodomised in the Tivoli Villa and that the act had taken place on a bed in a fully-furnished apartment, complete with carpets and all. He further testified that the act had taken place prior to 1993.

The defence, in turn, managed to prove that the apartment was under renovation from 1 January 1993 to 3 February 1993, and that from 4 February 1993 to 31 March 1993 Anwar was never in the apartment.

“The judge tried to buttress the evidence. He was trying to prop up a case that was so weak and unconvincing.”

“He said Azizan’s evidence is as strong as the Rock of Gibraltar.”

“Preposterous is too mild a word to use.”

“No judge in the history of this nation has gone this far to build up the credibility of a witness such as this – a witness who has no credibility whatsoever.”

Fernando explained that if there is any benefit of the doubt, it should have been given to the accused, not the prosecution. Instead, it was the opposite in Dato’ Seri Anwar’s case.

“This is a basic fundamental principle of law.”

“Azizan should have been impeached. This is not difficult as clearly he lied.”

“If Azizan had been impeached, the hearing would have ended then and there as the entire trial hinged on Azizan’s testimony.”