A comprehensive consideration scintillatingly written of Dr. Munawar Anees? legal battle to clear his name in the Malaysian courtrooms and is left with what passes off for Justice in Malaysia ? Injustice. This is the concluding part.
We are now in the High Court
Needless to say, the Kuala Lumpur High Court, coincidentally presided over by the Honourable Attorney General’s very own brother, threw the application out of Court faster than you could say ‘travesty’ on the spurious grounds that the Applicant himself was not present. What this has to do with the price of guavas in Guatemala is anyone’s guess.
The fact that the Applicant was living in the USA, having hastily departed from this insanity immediately after his release from prison, which is completely understandable in the circumstances, and having to undergo intensive psychiatric treatment for his mental trauma, was no excuse for not being present in Court on those numerous occasions the matter was called up for disposal, but not disposed of.
Even an email tendered to the Honourable Judge by Manjeet explaining the Applicants predicament was obnoxiously discarded on the flimsy grounds there was no proof it was sent by the Applicant and received by his counsel, despite the word of counsel that it had.
Neither was it a sufficient excuse that the Applicant was well represented by a very senior and capable lawyer who was acting in his best interests, unlike some other lawyers we know of.
Neither was it of any consequence that the application for these diaries was merely an interlocutory matter where litigants seldom waste time turning up in Court unless they want to, not because they have to.
Neither did the Judge, anywhere in his lop sided judgment, ever address his mind to the justice that the application ought to have attracted.
What the Judge did in essence was to mould his judgment around the requirements of the prosecution (read: ‘being political correct and subservient to the powers that be’) and to put his official stamp on the piece of rubbish he tried to disguise as a well thought out and balanced opinion on the merits of the application. Who was he trying to kid?
Inevitably, an appeal to the Court of Appeal was filed against this decision.
In the meantime, another similar application was filed in the High Court for the same relief, which eventually suffered the same fate and therefore as a matter of course, ended up as an appeal before the Court of Appeal also.
Therefore, at this stage there were two appeals pending before the Court of Appeal relating to the refusal to release the lock up and prison diaries.
Why were these documents so important to Munawar?
The answer is simple. They would have established gross impropriety on the part of the police, the prosecution and the defence lawyer. That is why they couldn’t be allowed to see the light of day.
If Munawar’s statutory declaration is referred to, it will be seen that the police and the defence lawyer were harassing Munawar whilst he lay in his hospital bed, which was also his prison cell. Anyone calling to visit him would have their particulars recorded by the prison guard on duty outside the ward. This would form part of the prison records. This document would prove visits by officers of the Special Branch with Yacob Karim in tow, which in turn would corroborate what Munawar was accusing them of trying to do … persuading him to withdraw his appeal. Yes, even his own ‘counsel’! There is absolutely no reason for a police officer to visit a convicted person in jail unless he was being interviewed in respect of another offence, which he wasn’t, let alone with his own counsel, whose dubious ‘retainer’ had ended at the Sessions Court.
Back To the High Court and the Appeal Proper
Munawar was fast becoming a thorn in the flesh of the entire corrupted system. He just wouldn’t go away. His persistence was becoming tiresome to many interested parties. This system was however stuck with him whether they liked it or not.
So what better way to get rid of him than by a display of judicial subterfuge.
After numerous adjournments of the hearing of the appeal, the Judge insisted it proceed. Fair enough. No one wants files unnecessarily hanging around cluttering up the smooth running of the appellate system. But sometimes, just sometimes, this is inevitable, especially when you are waiting for a Higher Court to deliver decisions on two appeals which would have a direct bearing on the issues before the High Court.
This was no excuse.
Munawar was not present in Court so the Judge took advantage of the situation and dismissed his appeal despite protestations from Manjeet.
The arguments were totally ignored by the blinkered and programmed Judge who had his judicial mind short circuited and forced focused on one aspect and one aspect alone. This was a window of opportunity to bury Munawar for good. Reliance was placed on a section in the Criminal Procedure Code (s.313 (2)), which said a Judge of an Appellate Court was entitled to throw out an appeal brought by a convicted person if he does not show up in court.
Munawar was jobless and undergoing psychiatric treatment in the United States. He could not afford the time nor the expense to travel to Malaysia every time his appeal was called up, and there were many.
Munawar was represented by two diligent counsel, Manjeet and Balwant.
Munawar had already completed his sentence. In other words, there had been no stay of execution of sentence after his conviction in the Sessions Court. He would not have had to go to jail if he lost his appeal. There was no fear of him absconding from an unspent conviction and sentence. He had paid his debt to society. For what, we do not know, but that is the philosophy.
The only delay in the appeal was caused by the Court of Appeal not fixing a date to hear the two side appeals. This was not Munawars fault. All he was asking for was to have his appeal heard on the merits and this could only have happened if he had the prison diaries and the lock up register produced before the Court. Why the secrecy? Why were the Courts determined not to allow these logs to surface?
This situation did not impress the High Court Judge. He was probably more impressed with the instructions he had received to get rid of Munawar because he was becoming an embarrassment to Mahathir’s government.
So on the flimsiest of grounds and based on a completely wrong interpretation of law, both statutory and common, he found that Munawar’s absence in Court on that day entitled him to dismiss the appeal. As a rider, the learned Judge, in an act of utter benevolence, stated that he was in effect doing Munawar a favour by dismissing the appeal because he was entitled, under the provisions of the Criminal procedure Code, to enhance the sentence if he had heard the appeal. This was despite the fact that the prosecution had at no time, indicated they were pursuing an application to enhance sentence.
The learned Judge felt vindicated in his illogical judgment by making reference to two decided cases in which the Judges had adopted a similar course of action. He failed miserably to appreciate a very fundamental difference between those cases and Munawar’s.
Both the appellants in the cases the Judge relied on had been convicted of offences in the Lower Courts and were both on bail with stays of execution of their sentences pending the outcome of their respective appeals to the High Court.
Munawar had completed his sentence.
This learned Judge also completely ignored that part of the section of the Criminal Procedure Code, upon which he was relying to dismiss Munawar’s appeal, which unequivocally states that the Judge is obliged to give directions before he takes the drastic step of dismissing an appeal and depriving an appellant of his God given right to be heard. This he did not do. He never issued the required threat that the appeal would be dismissed if Munawar did not turn up at the next hearing date. He never gave Munawar a chance.
Therefore an appeal against this decision was lodged in the Court of Appeal. There were now three appeals before the Court of Appeal. Munawar refused to go away.
The Fiasco in the Court of Appeal
Many many years later, Munawar’s substantive appeal was finally called up for disposal. Perhaps they had hoped Munawar had disappeared off the radar. He hadn’t. He presented himself in the Court of Appeal at that ostentatious building in Putra Jaya they call ‘The Palace of Justice’. The irony of it all.
Everything went according to plan.
Their plan.
The appeal was called up, counsel from both sides submitted. The Court dismissed the appeal. Short and sweet.
Reasons: None.
Grounds of decision: None.
Two side appeals: Still pending
Where does one go from here?
To the Federal Court of course.
At the Federal Court
This is the apex Court of the Malaysian judicial system. You can’t go any higher. This Court is presided over by thecreme de la creme of judicial minds. Handpicked men and women chosen for their legal knowledge, prowess, fair mindedness, dedication and commitment to upholding the rule of law. These men and women are the protectors of the constitution. They are lumbered with the onerous task of keeping society on track and protecting the rights of the ordinary citizen, if there are any to protect. More often than not there aren?t. This makes their judicial lives a little easier.
To keep the riff raff away, these justices of the Federal Court are also empowered to act as judicial traffic cops. This means they are able to let in only those they feel like entertaining. Therefore applications for invitations have to be made in advance and in most circumstances.
To get past these ’security guards’ an aspiring appellant would have to convince them that he or she is entitled to present his or her grievances at this level. The requirement that justice has been in short supply is totally irrelevant.
Invitations to present these grievances are rarely granted as otherwise this would open the flood gates to thousands of justice seekers whose presence before the Honourable Justices Almighty would necessitate tedious written excuses for supposed reasoned decisions, primarily inclined to preserve the status quo of their political masters also known as the Government of the Half Century, upon whom their positions, titles and salaries depend. And besides, the carpets would get dirty.
So Munawar found himself in a position where he had to file an application to the Federal Court to be allowed to present his appeal, against the decision of the Court of Appeal, before those Honourable Justices.
This was necessary as his ‘matter’ had ostensibly begun at the Sessions Court and should have ended at the Court of Appeal. That’s the law. But with any good piece of Malaysian law, there is always a way to get around it. It’s called a ‘loophole’ or a ‘lacuna’. You can easily create one, depending on who you are. Munawar was not one of the chosen few. His application was doomed from the start.
Their Honourable Justices surprised all involved by actually presenting Munawar with a written judgment dismissing his application for leave to bring his substantive appeal before them. This would have been totally acceptable if their Lordships had not chosen to embark on a frolic of their own by embellishing the decision of the High Court and sanctifying it.
This they were not asked to do.
Back to the Court of Appeal
At about the same time Munawar was scratching his head over the latest blow to his expedition in search of justice and fair play, a decision was made by the Court of Appeal to the effect that a disgruntled appellant could actually seek a review of a decision made by that court if it was found the merits of the appeal had not been addressed. A very brave and trail blazing judgment. You don?t get decisions like this very often, especially when it involves something extremely difficult to grasp in terms of concept, something called ‘justice’.
Remember the Court of Appeal had previously dismissed Munawar’s appeal without delivering a written judgment. No one knew why. No one was able to decipher the reasons without one.
This prompted an application for a review of this previous decision. If there wasn’t a decision, then it could be argued that the merits of the appeal had not been addressed. Fair enough.
But in any good application of this nature, there is a minefield to cross first and the chances are you will become a victim of judicial C4.
For the uninitiated, there is something an uninspired Judge will always look for as a means of avoiding ground breaking and judicially conscious material, irrespective of whether the situation necessitates this. This escape plan is founded on the principle of ‘stare decisis‘. What this piece of Latin obfuscation means in simple terms is that a Judge of a lower Court is totally emasculated from making up his own mind as long as a decision of a similar nature has been made, albeit wrongly, by a higher court.
The philosophy behind this customary discretion is based on the premise that Judges of a higher court know what they are talking about and those on a lower rung don’t.
Maybe this worked well for ancient Romans but it doesn’t really work that way in modern day Malaysia. Here, no matter what rung you are on in the judicial hierarchy, you still have no idea what you are talking about.
Nevertheless, if we recall, the Federal Court had decided to refuse Munawar’s application to present his appeal before that Court. That’s where the matter ought to have ended, but their Lordships, in their infinite wisdom, went further and said the High Court Judge was right in dismissing the appeal. They did this without hearing any substantive arguments in relation to this point, which wasn’t a point before the Court in the first place. The only issue before that Court was whether Munawar would be allowed to bring his appeal before it.
Therefore the Judges of the Court of Appeal jumped on this and said that they were unable to consider the application for review because they were bound by the gratuitous decision of the Federal Court, which, by extrapolation, had studied the merits of the appeal and decided there weren’t any, so goodbye folks.
That ought to have put the final nail in the coffin of Munawars’ quest for justice.
But it didn’t.
Manjeet, who had by this stage, spent 11 years, or rather, more than a quarter of his career at the Bar, pursuing the elusive search for justice for Munawar, came up with another brain wave. Let’s go back to the Federal Court and ask them to expunge all that part of their judgment which relates to the actual substance of the appeal and then there won?t be any more of this ‘stare decisis‘ thingy for the Court of Appeal to rely on.
Fair enough.
The Federal Court should not have gone into the merits of the appeal if they said they couldn’t hear it. The fact that they did, borders on hypocrisy. But that is another issue for another day.
Back to the Federal Court
So another application was filed in the Federal Court to expunge all that part of the judgment which related to the merits of Munawars appeal.
The matter was heard in due course and after much judicial deliberation, which must have extended to at least a couple of minutes, Munawar was told in no uncertain terms that the Court would not consider entertaining this frivolous request.
And there ended almost 12 years of misery for Munawar in his futile attempts to regain his dignity and his sanity which he lost through a conviction for a crime he did not commit.
That is how the machinations of our judicial system function.
It matters not that you have been an innocent victim of political manipulations. What matters more is that you have been forcefully sacrificed for the political good of a few bad men and for this you should remain eternally grateful. You are our hero, so be thankful.
Hidup Malaysia! The country is indebted to you for your sacrifice.
Reflections
It is almost impossible to imagine the psychological impact all this must have had on Munawar. Is the extent of his perseverance indicative of someone who is guilty? What guilty person in his right mind and who had already served his sentence, would persevere as vehemently as Munawar has done, an opportunity to ensure that his dignity was restored and the record set straight. He was never guilty of the offence he was forced to admit to. That is more than obvious to any reasonable person superficially fluent with the situation but what is equally as obvious is that this state of affairs seemed to completely escape those entrusted with the powers to rectify injustices… The Judges themselves.
Shame on you.
It is also incredible how efficient the Malaysian Special Branch are in successfully ‘turning over’ a completely innocent person and converting him into a blubbering shadow of his formal self, prepared to say anything and admit to everything and at the same time knowingly exposing himself to incarceration.
Aren’t the Special Branch supposed to be a group of sophisticated and highly trained police officers of an elite section of the Royal Malaysian Police Force dedicated to preserving the security of the nation and ridding society of thieves, robbers, murderers, thugs, pimps and general scoundrels? If this is so, they have failed and continue to fail, miserably. What appears to have happened is that their job description has been read to them upside down and back to front, so much so they are unable to distinguish the good guys from the bad.
Are they so beholden to a few bad apples that they are unable to disassociate themselves from the evil they perpetrate? Are they able to sleep at night knowing they have done the wrong thing? That what they do is bad? That decent human beings don’t behave this way? Don’t they appreciate the harm they are inflicting on perfectly innocent members of society? Does this all really not matter to them? Has their judgment really been so clouded by their subservience to political heavyweights that they are no longer capable of seeing the real from the unreal? Right from wrong? Good from bad? What has turned these people into Satan’s disciples?
Maybe they themselves are victims of brainwash.
Munawar’s fight has not ended. It will go on in perpetuity and perhaps at a different karmaic level until something gives. It has to. Munawar is not a padi planter?s son from the depths of the Terengganu hinterland. He is not going to go away with his tail between his legs and accept what has happened to him as God planned fate. This time they picked the wrong guy.
Munawar is not going to go away any time soon.
Which brings us to ‘Sodomy II’.
Why was it necessary to find another victim of Anwar Ibrahim’s supposed carnally convoluted desires? They had Munawar all ready and nicely packaged. It would have been so much easier. He had already confessed to allowing Anwar to have his way with him. He pleaded guilty to this indiscretion and three tiers of judicial intervention had confirmed this as being the truth. What was stopping Anwar being charged using Munawar as the cornerstone of the potential prosecution? It could have been an open and shut case. In theory anyway. But they didn’t.
Why? Because they could never have survived the onslaught that would have erupted. Manjeet would have seen to that.
It was far easier to strike a deal with an impressionable 24 year old dropout than to deal with the formidable Munawar and his legal team.
The cowardice of it all.
[Loyarburok Editorial Note: You can read Dr. Munawar Anees' account of 'The Price I Paid for Malaysian Justice' here.]
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