(Kuala Lumpur, Tuesday): I call on the Attorney-General Tan Sri Mohtar Abdullah to reconsider the prosecution objection to the granting of bail to former Deputy Prime Minister, Datuk Seri Anwar Ibrahim during the latter’s trial and to allow him to be with his family, if necessary, confined to his Damansara Heights residence.
The Attorney-General should undertake such a review especially in view of the 32-page written judgement of the Court of Appeal Justice Datuk N.H. Chan on Saturday, although the Court of Appeal dismissed Anwar’s appeal against the High Court’s decision to deny him bail on the ground that the matter was not appealable to the Court of Appeal.
The Anwar case has put the Malaysian system of justice in the spotlight, nationally and internationally, and it is incumbent on the part of the Attorney-General to ensure that justice is not only done, but is seen to be done.
For this reason, regardless of the provisions of the law at the moment, if justice is lacking, the Attorney-General is duty-bound as the chief legal officer of the land to consider what remedial measures could be taken to ensure that justice can be done.
Justice Chan’s 32-page written judgement had given two reasons why the Attorney-General should review the prosecution objection to the granting of bail to Anwar.
Firstly, Justice Chan said that there was only one ground of substance in Anwar’s appeal and it concerned the issue of the danger of witnesses being tampered with by Anwar.
He said: "It is most regrettable that the judge (Justice S.Augustine Paul) had to resort to a 50-year-old edition of Sohoni (Sohoni’s Code of Criminal Procedure) without realising that the editor of this well-known textbook had already revised the book on its views in later editions".
He said the edition relied upon by Justice Paul had stated that the "likelihood of interference with prosecution witnesses" was a strong reason to refuse bail.
In the revised 1997 edition, he said Sohoni had stated that bail "will not be refused merely on the basis of vague allegations" as it was not a sound reason.
Justice Chan said that "such an allegation (of witness tampering) is nothing more than the usual slogan which the prosecution raises in opposing bail".
Secondly, Justice Chan’s reference to judicial conscience and a renegade judge.
He said: "Since there is no appeal to the Court of Appeal from a decision of the High Court on a bail application, everything now will have to depend on the judicial conscience of the High Court judge who is to exercise his discretion, not in opposition to, but in accordance with the established principles of the law.
"But, what is there to discourage a renegade judge from exercising his discretion in opposition to established principles of law?
"Sadly, there is nothing that can be done under the law to correct such a miscarriage of justice!"
In fact, there is a third reason why the Attorney-General should review the prosecution objection to the granting of bail to Anwar.
Court of Appeal president, Tan Sri Lamin Yunus felt compelled to make an observation during the Court of Appeal’s dismissal of Anwar’s appeal last Saturday and said that the "tremendous noise" caused by shouts everyday after Anwar’s trial was adjourned constituted "a breach of the peace".
He added that he could imagine the situation if Anwar was free to move about, commenting: "The police will have no option but to deploy extra manpower, more than what you can see around the court building since the commencement of the trial, of course, at the expense of public funds to maintain peace and order".
Several questions arise from Lamin’s observation. Firstly, is it "a breach of the peace" for Anwar’s supporters gathering near the courthouse and expressing their support? Secondly, had Lamin prejudged the matter when it was not a subject before the Court of Appeal? Thirdly, had Lamin mistaken the judicial functions with police responsibilities? Fourthly, even if the "tremendous noise" near the courthouse daily during Anwar’s trial tantamount to "a breach of the peace", what relevance has it to do with Anwar’s bail application?
Talk about "expense of public funds" seems to be quite out of place in this case, especially after the prosecution had wasted not only precious time of the court but also public funds when at the close of the 46-day trial, it amended the charges against Anwar to make about half of the trial proceedings irrelevant!
Mohtar should review the question of bail for Anwar so as not to give the public and the world the impression that the prosecution opposed bail because of the "tremendous noise" near the court during Anwar’s trial.
If necessary, the Attorney-General should agree to the release of Anwar on bail provided he is confined to his Damansara Heights residence to allow him to be with his family.