Anwar Ibrahim Sodomy II – The Recorded Truth – 18.02.2010 February 18, 2010
Posted by malaysianstory in Anwar Ibrahim, Sodomy II.Tags: Anwar Ibrahim, Malaysian Story, Sodomy II
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Keputusan permohonan – Yang Arif Hakim Mohamad Zabidin Mohd Diah (YA) untuk menarik diri. [Khamis, 18 Februari 2010]
[09:50 am]
**Full translated version in English after “++++” at the end of this post!
Nota Rujukan: [Pasukan Pendakwaraya – Dato’ Mohd Yusof (MY), Dato’ Nordin Hassan(NH)] [Tertuduh – Anwar Ibrahim (AI)] [Pasukan Peguambela – Karpal Singh(KS), Paracumaraswamy(PC), Sankara Nair(SN), CV Prabakaran(CV), Ram Karpal (RK)]
Jurubahasa: Panggil kes, kes untuk keputusan.
MY: Memperkenalkan Mohd Hanifah Mydin sebagai salah seorang peguam AI
Court: Pemohon memohon supaya saya menarik diri dari pertuduhan yang dihadapinya dalam kes 45-9-2009. Permohonan ini berbangkit dari apa yang saya ucap semasa menolak permohonan Peguam Pemohon berhubung laporan dan gambar yang tersiar dalam Akhbar Utusan Malaysia.
Undang-undang berhubung penarikan diri seseorang hakim dari mendengar kes yang di amanahkan kepadanya untuk didengar adalah jelas.
Selain daripada satu kepentingan yang berbentuk wang atau tuan punya di dalam isi perkara sesuatu prosiding, undang-undang tidak menganggap tindakan berat sebelah untuk melucutkan kelayakan seorang hakim daripada bertindak dalam kedudukan kehakimannya. Untuk melucutkan kelayakan seseorang hakim daripada bertindak di dalam kedudukan kehakimannnya atas alasan kepentingannya (selain daripada yang berbentuk wang atau ketuanpunyaan) di dalam isi perkara sesuatu prosiding, kemungkinan berat sebelah mesti ditunjukkan’. Dalam melihat sama-ada terdapat kemungkinan berat sebelah, ‘mahkamah melihat kepada tanggapan yang akan diberikan kepada orang lain. Jika orang yang berfikiran waras akan berfikir bahawa dalam keadaan tersebut terdapat kemungkinaan sebenar hakim itu akan bertindak berat sebelah, beliau tidak patut mendengar kes itu’. [Ringkasan dalam bahasa Malaysia keputusan NH Chan HMR dalam kes Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin [1995] 2 MLJ 213] seperti dilaporkan pada muka surat 217.
Apa yang dimaksudkan dengan berat sebelah ada dinyatakan dalam kes R v East Kerrier Justice [1952] 2 QB yang dirujuk oleh Hakim NH Chan dalam kes yang sama. Ia dinyatakan seperti berikut; “Bias with regard to anyone acting in a judicial capacity means anything which tends or may be regarded as tending to cause such person to decide a case otherwise than on the evidence”.
Jelas di sini, apa yang perlu wujud sebelum seseorang hakim boleh menarik diri dari tanggungjawabnya mendengar kes yang diamanahkan kepadanya, ialah mesti terdapat fakta yang boleh membuat seseorang yang berfikiran waras akan berfikir bahawa terdapat kemungkinan sebenar hakim tersebut akan membuat keputusan berhubung isu yang dibicarakan bukan berdasar keterangan yang dikemukakan tetapi berdasarkan pertimbangan lain.
Dalam menentukan terdapat atau tidak fakta ini, adalah penting dibezakan isu pokok yang memerlukan pertimbangan dari isu sampingan. Dalam kes yang dibicarakan di depan saya, perkara pokok yang perlu dipertimbangkan adalah sama ada terdapat kesalahan meliwat di bawah seksyen 377B Kanun Keseksaan. Berikutan dari itu persoalan sekarang ialah sama ada terdapat apa-apa fakta dalam kes ini yang boleh membuat seseorang yang berfikiran waras akan berfikir bahawa terdapat kemungkinan sebenar keputusan berhubung isu sama ada berlaku kejadian liwat antara Pemohon dengan pengadu dalam kes ini akan dibuat bukan berdasar keterangan yang akan dikemukakan tetapi berdasarkan pertimbangan lain.
Setelah meneliti hujah dan affidavit yang difailkan oleh kedua-dua pihak, saya tidak Nampak bagaimana seseorang yang berfikiran waras akan berfikiran sedemikian.
Berhubung tindakan Peguam Karpal Singh menuduh saya tidak bercakap benar dan berbohong semasa membuat keputusan menolak permohonannya, penelitian keterangan SP1 seperti tercatat dalam Eksibit DSAI 3 yang telah difailkan bersama Afidavit Datuk Seri Anwar sendiri, jelas menunjukkan keseluruhan dakwaan tersebut tidak benar sama sekali.
Oleh itu, saya dapati tidak ada sebab bagi membolehkan saya menarik diri dari terus mendengar kes ini. Sekiranya saya menarik diri dalam keadaan sedemikian, ini bermakna saya lari dari tanggungjawab saya sebagai seorang hakim. Seseorang hakim yang telah menangkat sumpah jawatan sudah semestinya tidak boleh mengelak diri dari menjalankan tugas yang telah diamanahkan kepadanya. Dalam keadaan demikian permohonan ini ditolak.
Dengan itu permohonan ditolak.
KS: May we proceed with the cross-examination?
Court: Stand down.
[09:58 am]
Jurubahasa: Kes dipanggil semula
[10:08 am]
MY: Pihak-pihak seperti yang sama. Hari ini sambungan SP1, izinkan saya. Saya ingin pohon mahkamah sama ada pihak pembela ingin memfailkan Notis Rayuan terhadap keputusan mahkamah sebentar tadi, saya ada satu otoriti.
KS: MY should inform the authority to the court.
MY: If the appeal succeeds, the whole proceeding will be expunge.
KS: YA can go on, in line with the authority. We will appeal and we are ready to proceed with the trial. There is no more delaying tactics.
MY: My colleague brought my attention to the authority, I cannot …
KS: In line with the authority, we have to appeal, we must appeal, there is too many elements coming to this trial. We don’t repetition and allow the Pemuda UMNO to go wild, with the demonstration at the Australian Embassy. There are 2 black hands behind this prosecution, the Prime Minister and his wife. We’re prepared to proceed but we are bound with the authority and YA must allow a stay.
MY: There is no such thing as ‘must appeal’.
YA: So, there will be appeal, can you file in the Notice tomorrow?
KS: We will appeal. We will file in before tomorrow. We want to go on with the trial. No delay as people and the prosecution saying that we’re delaying with the trial.
MY: The prosecution never said anything about delay. The delay was only said by KS.
KS: That’s what in newspaper report.
YA: Cukup dah MY?
MY: I think that both the prosecution and the defence owe the truth to the Malaysian public not the Australian or American.
KS: It is a trial where YA
AI: The truth, not blatant lies. [dari kandang tertuduh]
KS: You cannot blame AI for saying that because it is the truth.
Court: Stand down
[10:17 am]
[10:35 am]
Pihak-pihak (MY, NH, KS, PC, SN, CV dan RK) ke kamar YA
[10:42 am]
[10:53 am]
Court: Dalam kes ini pihak pembelaan akan buat rayuan. Pihak pembela mempersoalkan kelayakan saya untuk terus mendengar kes ini. Oleh itu adalah penting soal ini diputuskan oleh mahkamah yang lebih tinggi untuk mengikut prinsip natural justice. Jika mahkamah rayuan bersetuju saya patut menarik diri, maka keseluruhan keterangan yang didengar oleh saya mesti di ‘expunge’. Dengan merujuk kes Rowstead System Sdn. Bhd. v Bumicrystal Technology (M) Sdn. Bhd [keputusan Mahkamah Rayuan] adalah mengikat Mahkamah ini, maka kes ini akan disebut semula pada 25 Mac 2010 sementara menunggu mahkamah rayuan.
[10:55 am]
[Adjourned to 25 Mac 2010]
++++++Full Translated English Version Below+++++
Judgement of request for Y.A. Judge Mohamad Zabidin Mohd Diah to recuse himself.
[09:50 am]
JB: Proceed with hearing of application, for delivery of decision.
MY: Introducing Mohd Hanifah Mydin as a counsel for AI
Ct: The application for me to recuse myself from hearing case 45-9-2009.
This application arose from my comments while rejecting Defense counsel’s request in relation to the report and photograph that appeared in Utusan Malaysia.
The laws pertaining to the recusal of a judge from hearing a case that is assigned to him are clearly defined.
Asides from the importance of monetary or ownership within the substance of a proceeding, the law does not assume any biased decisions as grounds to disqualify a judge to act in his judicial capacity.
To disqualify a judge as being unfit to act in his judicial capacity in a proceeding, because of personal gains (besides monetary or personal ownership) which may lead be bias, has to be proven.
In determining the possible existence of biasness, the court reflects on the perception that is given to others. If those who are lucid determine that in a specific situation there is a high probability that a judge will act in a biased manner, then the judge should not hear the case. [Briefly in Bahasa Malaysia from judgment of NH Chan HMR in the case of Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin [1995] 2 MLJ 213] as appears on page 217].
What is regarded as bias is defined in the case of R v East Kerrier Justice [1952] 2 QB, which is referred to by Judge NH Chan in the same case. It states :
“Bias with regard to anyone acting in a judicial capacity means anything which tends or may be regarded as tending to cause such person to decide a case otherwise than on the evidence”.
It is clear that before a judge may recuse himself from hearing a case that has been assigned to him, there must be facts that exist which will make the lucid consider that there is a high probability that the judge’s decisions in the issues pertaining to the trial will be based on other considerations and not on evidence presented.
In determining whether or not this exists, it is important to differentiate the root issue that is under consideration, from side issues. In the case which is being heard before me, the main issue that must be taken into consideration is whether or not there was the act of sodomy under Section 377B of the act. Following that, the question at hand is whether there exists any facts in this case that can lead a lucid person to think that there is a real probability that the decision related to the issue of whether or not sodomy was committed between the applicant and the complainant in this case, will be made based on other considerations rather than testimony that is presented.
Having reviewed the arguments and affidavits filed by both parties, I do not see how anyone who is lucid will think as such.
With regards to Counsel Karpal Singh’s actions in accusing me of not telling the truth and lying in my decision to reject his application, precise testimony of SP1 as recorded in Exhibit DSAI 3 which was filed with D.S. Anwar’s own affidavit, clearly shows that the accusation in its entirety is untrue.
Because of that, I find that there is no reason for me to recuse myself from further hearing this case. If I recuse myself as such, I will be detracting from my responsibilities as a judge. A judge who has taken an oath of office cannot avoid duties that are assigned to him. As such, the application is denied.
At that, the application is rejected.
KS: May we proceed with the cross-examination?
Ct: Stand down.
[09:58 am]
JB: Case is recalled
[10:08 am]
MY: Aforementioned parties. Today’s continuation with SP1. I wish to ask the court if the Defence wishes to file a notice of appeal concerning the court’s earlier decision, I have an authority.
KS: MY should inform the authority to the court.
MY: If the appeal succeeds, the whole proceeding will be expunge.
KS: YA can go on, in line with the authority. We will appeal and we are ready to proceed with the trial. There is no more delaying tactics.
MY: My colleague brought my attention to the authority, I cannot
KS: In line with the authority, we have to appeal, we must appeal, there is too many elements coming to this trial. We don’t repetition and allow the Pemuda UMNO (UMNO Youth) to go wild, with the demonstration at the Australian Embassy. There are 2 black hands behind this prosecution, the PM and his wife. We’re prepared to proceed but we are bound with the authority and YA must allow a stay.
MY: There is no such thing as ‘must appeal’.
YA: So, there will be appeal, can you file in the Notice tomorrow?
KS: We will appeal. We will file in before tomorrow. We want to go on with the trial. No delay as people and the prosecution saying that we’re delaying with the trial.
MY: The prosecution never said anything about delay. The delay was only said by KS.
KS: That’s what in newspaper report.
YA: Enough already, MY?
MY: I think that both the prosecution and the defence owe the truth to the Malaysian public not the Australian or American.
KS: It is a trial where YA
AI: The truth, not blatant lies. [dari kandang tertuduh] [from the accused’s stable]
KS: You cannot blame AI for saying that because it is the truth.
Ct: Stand down
[10:17 am]
[10:35 am]
Parties (MY, NH, KS, PC, SN, CV dan RK) to YA’s chambers
[10:42 am]
[10:53 am]
Ct: In this case, the Defense will appeal. The Defense questions my qualification to continue hearing this case. This is why it is important that this is now heard by a higher court, in line with the principle of natural justice. If the court of appeal decides that I should recuse myself, then that would mean that all testimony that has been heard before me must be expunged. Referring to the case of Rowstead System Sdn Bhd v Bumicrystal Technology (M) Sdn Bhd [ruling of the Court of Appeal] binds this court, therefore this case will be recalled for mention on 25 March 2010, while awaiting the decision of Court of Appeal.
[10:55 am]
[Adjourned to 25 Mac 2010]
<!–[if supportFields]> SEQ CHAPTER \h \r 1<![endif]–><!–[if supportFields]> <![endif]–>Judgement of request for Y.A. Judge Mohamad Zabidin Mohd Diah (YA) to recuse himself.
[09:50 am]
JB: Proceed with hearing of application, for delivery of decision.
MY: Introducing Mohd Hanifah Mydin as a counsel for AI
Ct: The application for me to recuse myself from hearing case 45-9-2009.
This application arose from my comments while rejecting Defense counsel’s request in relation to the report and photograph that appeared in Utusan Malaysia.
The laws pertaining to the recusal of a judge from hearing a case that is assigned to him are clearly defined.
Asides from the importance of monetary or ownership within the substance of a proceeding, the law does not assume any biased decisions as grounds to disqualify a judge to act in his judicial capacity.
To disqualify a judge as being unfit to act in his judicial capacity in a proceeding, because of personal gains (besides monetary or personal ownership) which may lead be bias, has to be proven.
In determining the possible existence of biasness, the court reflects on the perception that is given to others. If those who are lucid determine that in a specific situation there is a high probability that a judge will act in a biased manner, then the judge should not hear the case. [Briefly in Bahasa Malaysia from judgment of NH Chan HMR in the case of Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin [1995] 2 MLJ 213] as appears on page 217].
What is regarded as bias is defined in the case of R v East Kerrier Justice [1952] 2 QB, which is referred to by Judge NH Chan in the same case. It states :
“Bias with regard to anyone acting in a judicial capacity means anything which tends or may be regarded as tending to cause such person to decide a case otherwise than on the evidence”.
It is clear that before a judge may recuse himself from hearing a case that has been assigned to him, there must be facts that exist which will make the lucid consider that there is a high probability that the judge’s decisions in the issues pertaining to the trial will be based on other considerations and not on evidence presented.
In determining whether or not this exists, it is important to differentiate the root issue that is under consideration, from side issues. In the case which is being heard before me, the main issue that must be taken into consideration is whether or not there was the act of sodomy under Section 377B of the act. Following that, the question at hand is whether there exists any facts in this case that can lead a lucid person to think that there is a real probability that the decision related to the issue of whether or not sodomy was committed between the applicant and the complainant in this case, will be made based on other considerations rather than testimony that is presented.
Having reviewed the arguments and affidavits filed by both parties, I do not see how anyone who is lucid will think as such.
With regards to Counsel Karpal Singh’s actions in accusing me of not telling the truth and lying in my decision to reject his application, precise testimony of SP1 as recorded in Exhibit DSAI 3 which was filed with D.S. Anwar’s own affidavit, clearly shows that the accusation in its entirety is untrue.
Because of that, I find that there is no reason for me to recuse myself from further hearing this case. If I recuse myself as such, I will be detracting from my responsibilities as a judge. A judge who has taken an oath of office cannot avoid duties that are assigned to him. As such, the application is denied.
At that, the application is rejected.
KS: May we proceed with the cross-examination?
Ct: Stand down.
[09:58 am]
JB: Case is recalled
[10:08 am]
MY: Aforementioned parties. Today’s continuation with SP1. I wish to ask the court if the Defence wishes to file a notice of appeal concerning the court’s earlier decision, I have an authority.
KS: MY should inform the authority to the court.
MY: If the appeal succeeds, the whole proceeding will be expunge.
KS: YA can go on, in line with the authority. We will appeal and we are ready to proceed with the trial. There is no more delaying tactics.
MY: My colleague brought my attention to the authority, I cannot
KS: In line with the authority, we have to appeal, we must appeal, there is too many elements coming to this trial. We don’t repetition and allow the Pemuda UMNO(UMNO Youth) to go wild, with the demonstration at the Australian Embassy. There are 2 black hands behind this prosecution, the Prime Minister and his wife. We’re prepared to proceed but we are bound with the authority and YA must allow a stay.
MY: There is no such thing as ‘must appeal’.
YA: So, there will be appeal, can you file in the Notice tomorrow?
KS: We will appeal. We will file in before tomorrow. We want to go on with the trial. No delay as people and the prosecution saying that we’re delaying with the trial.
MY: The prosecution never said anything about delay. The delay was only said by KS.
KS: That’s what in newspaper report.
YA: Enough already, MY?
MY: I think that both the prosecution and the defence owe the truth to the Malaysian public not the Australian or American.
KS: It is a trial where YA
AI: The truth, not blatant lies. [dari kandang tertuduh] [from the accused’s stable]
KS: You cannot blame AI for saying that because it is the truth.
Ct: Stand down
[10:17 am]
[10:35 am]
Parties (MY, NH, KS, PC, SN, CV dan RK) to YA’s chambers
[10:42 am]
[10:53 am]
Ct: In this case, the Defense will appeal. The Defense questions my qualification to continue hearing this case. This is why it is important that this is now heard by a higher court, in line with the principle of natural justice. If the court of appeal decides that I should recuse myself, then that would mean that all testimony that has been heard before me must be expunged. Referring to the case of Rowstead System Sdn Bhd v Bumicrystal Technology (M) Sdn Bhd [ruling of the Court of Appeal] binds this court, therefore this case will be recalled for mention on 25 March 2010, while awaiting the decision of Court of Appeal.
[10:55 am]
[Adjourned to 25 Mac 2010]
Malaysian Story 
Thumbs up to Yang Arif for being firm on his stand and being able to differentiate between minor trivial error from being mislead by the cunning defense team! We are all behind YA for not shirking his duty to carry out his duties without fear or favour to anyone! We understand he is under tremendous pressure from the defense to recuse himself but hold on to his principle and duties! Keep it up Good Ole Judge!
Let’s see what the ASS LOVER has got to say next!
It is catastrophic that Malaysians are more and more being alienated by political leanings, racism, religious extremism (latest-selective punishment), and failed educational policies (PPSMI,MBMMBI,100 High Performance Schools, Cluster Schools, Smart Schools etc- pick your choice) . When all’s said and done, every issue we are being forced to take sides and choose which one to defend. So..it is only facts that is being stated as the situation of the country is getting from bad to worse. The liberal lifestyle enjoyed by Malaysians is at stake if progressive and liberal forces continue to lose their battle. After 2008, these party has seemly wants to set up a style Islamic state (to ensure that is one way to win grassroot heart for next PRU), including chipping away the secular aspect of the Federal Constitution. If Malaysians continue to strengthen these, they are doing so with their eyes open.
This trial is nauseating, disgusting and contemptible. If the doctors’ clinical findings had shown that there was indeed penetration of the anus, then there is every reason to go on with the trial. In our legal history, no rapist had been brought to court or been asked to enter on his defence when the medical examination showed that there was no penetration or there was inconclusive evidence that penetration had taken place; and that the ‘private part’ is still intact. It just shows the inexperience of this Judge. I think he has never presided over a rape case before. That is one reason he had been chosen to hear this case.
Hishamuddin Rais, the much travelled ex-student activist is correct in saying that Umno is using ‘Saiful’s arse’ to enable it to gain back the malay ground. Its mouthpiece the Utusan is doing the dirty job of disparaging Anwar. Is there no other political way to defeat Anwar and PR other than succumbing and resorting to this despicable act of abusing a compliant and servile prosecuting office and judiciary?
This trial is a waste of public funds. Why can’t Umno employ its own team lawyers to conduct the prosecution.
observer, so there is clinical finding. then present and testify in court lah. allow the other party to challenged such findings. then be ready to be cross examined. why you want the judge to drop the case before the evidence is being presented, testify and challenged? what is it that anwar wants to hide?
The arguement is not about clinical findings but a prima facie must exists before it go to trial. Or is it in Malaysia, one is guilty untul proven beyond a reasonable doubt that he is innocent! This is grossly shameful as in the case of Teoh Beng Hock!
where on earth it is said that the evidence will rely on physical findings only? Please dont make up stories .Go and refer to the experts .. Oh i forgot.. malaysiakini is the only reliable source for you.. No wonder..
In a criminal trial it is the accuser( prose’n) who has to make out his case ‘beyond reasonable doubt’. The accused duty if at all he is called to give evidence is to cast ‘ a doubt’ only in the prosecution case.
If the medical findings say no penetration, why the heck you want to waste time for? No Judge in this world will either called the accused to enter on his defence or to convict him; That is more than casting a doubt. It is positive assertion. Malaysian prosecutors and Judge? Semua bolih lah. Oh I forgot You must be reading Utusan Malaysia.
Hey LA, the clinical findings are not conclusive that’s why a trial is needed.
Don’t worry coz’ we have Malaysian experts in forensic to testify and realible. If such glamour Dr. Phorntip expertise down the drain, what’s more to say.Let’s wait next week and see how deep its is! Ouwh..
Stop talking nonsense and stop ridiculing the impartial forensic experts, just because you guys cant buy them doesn’t mean that their findings are not true. Everyone knows what happens. You guys can say all you want but lets wait for PRU 13 to teach you all a lesson!
Why don’t you guys stop reading between the lines and just read the exact content! I am sure its obvious that the defense is also tired of their delaying tactics. That exactly what KS (Karpal Singh) said!
He said that the prosecution accused them of delaying not their deploy delaying tactics. Stupid!
delay…delayeddddd…. lots of roundabout… the 2 bimpers that AI like a lot…
Ask AL and KS to shut up and proceed with the case so all malaysian can know about the truth. Don’t keep saying the same words again and again. Konspirasi!!!!! No more effective. Nobody belief it any more.
Don’t be stupid lah.
Why stupid? we all want to know the truth, why keep on delaying?
we all know that all of you are scared shit out of your tiny little brains if you have any. Lets wait and see if the justice systems works!
Yeh, we hope this time around the Judge will be more competent than our Doctors from our FAMOUS KLANG HOSPITAL WITH SO MUCH MISTAKES AND GROSSLY IMCOMPETENT. No wonder the government always refers to them!
you guys talk as if you know everything, about anwar’s case what has he got to hide if he did not do this inhuman act, just proceed with the court ruling and proof anwar is innocent, this time its different, it now like the sukma and his driver’s accusation. let’s hear from saiful if he is bluffing he will be prosecuted. this is a personal case its not about politics that’s the problem in malaysia, everything is politicize, blaming and accusation other people without proper facts is wrong. Once I was DSAI admirer now it fading away, just proceed with this case and win DSAI will gain a lot if not…
of course when you control the agencies runing the show. Lets bring him to the syariah court. I am sure you have got nothing, one soliciting male prostitute and one client!