Teoh and Anwar: Battle of Perception heats up

Public perception is the most prized commodity in Malaysia now. Winning it means being in the ruling seat with its attendant access to power and wealth. 

Jan Yong, Malaysian Mirror

The bizarre twist to Teoh Beng Hock’s case has started, as expected. An anonymous blog alleging petty misappropriation of Selangor state’s annual allocation by some DAP lawmakers has made the rounds in blogosphere.

The battle to win public perception has entered a new phase – upped several notches by the sheer brazenness of the anonymous blog. Likely motive – to win public perception, ultimately to win the next general election. This much can be ascertained – even a primary school student can see through that.

What has Teoh’s case got to do with Anwar’s prolonged Sodomy 2 case? Plenty. Both are now fighting the battle of perception. When the real facts are fudged and sometimes muddled up in legalese language, with 1,001 allegations and counter-allegations being thrown about, it is incredibly fertile ground to further confuse the people.

teoh-beng-hock-2.gifHow many people out there have the patience to read all those court documents and judgments, and even if they do, would they understand the implications? Even fellow journalists, some quite senior, have told me that they found it difficult to follow some of the arguments. Some, having sat through lengthy arguments by both sides, have come out of the courtroom literally wringing their hands in frustration, in a sort of mental haze equivalent to the physical haze that we now are experiencing out there. I don’t blame them.

Powerful tool

Legal arguments and court judgments at best are attempts at reasonings to justify one side’s view of an issue. At worst, they use difficult-to-understand legal concepts couched in rather archaic style, and sprinkled sometimes with Latin words, in their reasoning. Which is why sometimes, for the layman, it’s sufficient just to know what the decision is and how it is arrived at in plain simple language – in as few words as possible.

Without a doubt, those schooled in these archaic language and legal concepts and the art of legal reasoning have a powerful tool at their disposal – one that can be manipulated to whoever is their master. I say “master” because lawyers are hired by others based on their expertise to expound the law to win the case. They seldom act for themselves. There is a saying that the mark of a good litigation lawyer is one who can convince you that black is white, and white is black. It’s just like the mark of a good salesman is one who can sell ice to the Eskimos.

Similarly, some judges are chosen for their ability and their “amenability” to put together legal reasoning to support a pre-determined decision. At least in Malaysia, that’s the case in some high-profile cases with many stakeholders. Some call this “misleading the public”.

Former judge, NH Chan, who in his recent critique of the Court of Appeal judgment in the Public Prosecutor’s attempt to transfer Anwar’s case to the High Court from the Sessions Court, has charged that the court of Appeal has misled the public by using as authority an English case that has been overruled by a subsequent case. According to him, the latter case, also an English case, has been applied by our Federal Court, thus effectively importing it into the common law of Malaysia, making it binding in Malaysia.

I quote NH Chan: “It is quite unbelievable that these judges of the Court of Appeal could ever dream of misleading the general public of this country by citing as authority a 1948 decision when they knew, as I am sure Haji Sulaiman or any competent counsel would have informed them, that Franklin is no longer good law. Not only that, Ridge v Baldwin in 1964 has been approved and applied by our Federal Court in Ketua Pengarah Kastam v Ho Kwan Seng, thus importing into the common law of Malaysia the English common law decision of Ridge v Baldwin.”

Further, he charged that the Court of Appeal (CA) has put words into the House of Lord’s decision in Franklin (Franklin & Ors v Minister of Town and Country Planning (1948) AC 87), specifically paragraph 53 of the CA’s judgment which states: “We would apply the exception that natural justice may be overridden by a statutory provision as enunciated in Franklin & Ors v Minister of Town and Country Planning (1948) AC 87, an exception which is applicable in both administrative and legislative processes”.

Horror and disappointment

NH Chan elaborates that he has read through the said House of Lords’s decision many times but was unable to find that particular statement above. The House of Lords is the highest court in the UK where its decisions are binding on all lower courts and are persuasive authority in most Commonwealth jurisdictions.

anwar-saiful-3.gifNH Chan, a widely respected judge who calls a spade a spade ends his critique with a very blunt “I am sickened by the perversity of the office of the Public Prosecutor” after quoting from the judgment of Steve Shim who was then the Chief Judge of Sabah and Sarawak in the case of Zainur bin Zakaria v Public Prosecutor [2001] 3 MLJ 604, 613-614.

In that case, the former chief judge described his “horror and disappointment” of how present Attorney General Tan Sri Abdul Gani Patail had obtained evidence against Anwar Ibrahim in Sodomy 1. Quoting Steve Sim in his judgment: “. . A man’s life, or for the matter, even his freedom, is not a tool for prosecution agencies to use as a bargaining chip. No jurisprudential system will condone such an act. It is blackmail and extortion of the highest culpability and my greatest disappointment is that a once independent agency that I worked with some 25 years ago and of which I have such satisfying memories has descended to such levels in the creation and collection of evidence. To use the death threat as a means to the extortion of evidence that is otherwise not there (why else make such a demand?) is unforgivable and surely must in itself be a crime, leave alone a sin, of the greatest magnitude. Whether his means justify, the end that he seeks are matters that Dato’ Abdul Gani will have to wrestle with within his own conscience.”

No doubt the erstwhile judge’s opinion is subject to other judges’ counter-opinions. However, given NH Chan’s calibre, he has certainly thrown a great deal of doubt over the impartiality of our Court of Appeal judges. He may not be the first, hopefully he will not be the last. When judges enter blogosphere, you can be sure that the battle will get fiercer from now on.

'There is an Internet war out there'

Public perception is the most prized commodity in Malaysia now. Winning it means being in the ruling seat with its attendant access to power and wealth.

Wasn’t it someone in court during Anwar’s application to postpone the hearing for further documents, who argued that the hearing should not be delayed as “there is an Internet war out there.” If anything, it’s a clear and unequivocal acknowledgment that the battle of perception is raging out there in blogosphere.

The good news is that many out there are crying out for truth and justice to prevail. This fact alone might just tilt the scales of justice in this country.