Unfair to deny Anwar’s defence access to documents, says Bar Council

By Boo Su-Lyn, The Malaysian Insider

KUALA LUMPUR, Nov 25 — The Bar Council has called the courts’ refusal to allow Datuk Seri Anwar Ibrahim access to documents in his Sodomy II trial a violation of his right to a fair trial.

Recently, the High Court here denied the Opposition Leader access to three Hospital Kuala Lumpur (HKL) doctors’ medical notes, although the court subsequently granted him access yesterday to a proforma report prepared by HKL forensic pathologist Dr Siew Sheue Feng.

A proforma report is a form or a list prepared by a doctor before performing an examination on a patient.

In January, the Federal Court had also denied Anwar access to key documents he sought to prepare his defence, and ruled that he was only entitled to documents and materials related to the charge that had already been provided to him.

“Some of these recent court decisions…have been myopic and regrettably regressive,” said Bar Council president Ragunath Kesavan in a statement today.

“They have in fact whittled down the strength of this vital tenet, rendering it meaningless and subverting the accused person’s right to a fair trial,” he added, referring to section 51A of the Criminal Procedure Code (CPC) that covers the production of documents and information in a trial.

Ragunath pointed out that section 51A of the CPC was meant to reduce inequalities between the prosecution and the defence.

“We believe that, in enacting section 51A of the Criminal Procedure Code to expand and strengthen the principle governing production of documents, the government made plain its intention to level the playing field between the prosecution and the defence, and to increase

transparency and fairness in the country’s criminal justice system,” he said.

Among the documents that the Federal Court had refused Anwar were chemist reports, medical notes, CCTV recordings, DNA samples, witness statements, and a witness list.

Ragunath pointed out that it was crucial for the prosecution to fully disclose information to all parties so that a judge could make an informed decision.

“It is the responsibility of all parties, including the judge, to ensure that the prosecution complies with full disclosure in terms of the information provided to the parties involved and produced in court,” he said.

“Only when all these elements are present can the judge make an informed decision on the credibility of the witnesses, and the weight to be given to their testimony,” he added.

Ragunath claimed that refusal to produce documents or information would mar public perception of the criminal justice system.

“Non-production of any documents and information merely gives rise to the perception, in the public mind, of a cover-up and would surely erode public confidence in the criminal justice system,” he added.

Anwar, the 62-year-old PKR de facto leader, is currently facing sodomy charges for the second time in his life.

The former deputy prime minister is charged with sodomising Mohd Saiful Bukhari Azlan at Unit 11-5-1 of the Desa Damansara Condominium in Jalan Setiakasih, Bukit Damansara here between 3.01pm and 4.30pm on June 26, 2008.

Anwar has denied the charge, describing it as “evil, frivolous lies by those in power” when the charge was read out to him. He is charged under section 377B of the Penal Code and can be sentenced to a maximum of 20 years’ jail and whipping upon conviction.

The trial is taking place 18 months after Anwar was charged in court in August 2008.