DALAM MAHKAMAH PERSEKUTUAN MALAYSIA

(BIDANG KUASA RAYUAN)

RAYUAN JENAYAH NO.: 05-04-2000(W)

ANTARA

DATO’ SERI ANWAR BIN IBRAHIM - PERAYU/PEMOHON

DAN

PENDAKWA RAYA - RESPONDEN

(Dalam Perkara Mahkamah Rayuan Jenayah No.W05-25-99 & W05-27-99)

ANTARA

DATO’ SERI ANWAR BIN IBRAHIM - PERAYU

DAN

PENDAKWA RAYA - RESPONDEN

(Dalam Perkara Mahkamah Tinggi Malaya di Wilayah Persekutuan

Perbicaraan Jenayah No. 45-48-98 & 45-59-98) Antara Pendakwa Raya

Dan Dato’ Seri Anwar bin Ibrahim)

CORAM:

ABDUL MALEK AHMAD, PCA

SITI NORMA YAAKOB, FCJ

ALAUDDIN MOHD. SHERIFF, FCJ

JUDGMENT OF SITI NORMA YAAKOB, FCJ

Four separate notices of motion have been filed by the Applicant for the common purpose of seeking to review an earlier judgment of this Court dated 10^th July, 2002 (“the impugned judgment”). The impugned judgment upheld and confirmed the convictions and sentences that had been imposed on the Applicant by the High Court after he was found guilty on four charges of corruption under section 2 of the Emergency (Essential Powers) Ordinance, 1970. Appeals by the Applicant against such convictions and sentences had also been dismissed by the Court of Appeal on 29^th April, 2002.

The four notices of motion seek:-

(1) to set aside the convictions and sentences as seen from

Enclosure 80(a) which is dated 9^th August, 2002. The Applicant relies on twelve grounds but before us, his Counsel,

Mr. Karpal Singh confined his submissions to only four grounds namely those stated at paragraphs 5(3), (4), (5) and (12) of the Applicant’s affidavit in support of Enclosure 80(a).

(2) to allow fresh/additional evidence that was not available during

the trial to be adduced as seen from Enclosure 89(a) which is

dated 10^th March, 2003.

(3) leave to rely on five additional grounds at the hearing of Enclosure 80(a). This is Enclosure 97(a) and is dated 14^th March, 2003 and the five additional grounds are stated as follows.

(i) The impugned judgment infringed the provisions of the proviso to section 94(2) of the Courts of Judicature Act, 1964 (“the Act”).

(ii) The three member Bench of this Court that heard the Applicant’s appeals (“the first corum”) had not directed its mind to the fact that the Court of Appeal did not have the opportunity to consider the remarks expressed by another panel of this Court (“the second corum”) in the contempt proceedings against Zainur Zakaria, one of the Applicant’s Counsel at his trial. These remarks relate to

the conduct of the trial Judge and the loss of opportunity by the Court of Appeal to consider those remarks deprived that Court from making a ruling as to the suitability of the trial Judge to continue the trial to its conclusion.

(iii) The failure of the first corum to direct its mind to the same remarks had prevented the first corum from ruling that such conduct infringed the provisions of rule 3(1)(d) of the Judges’ Code of Conduct, 1994.

(iv) The failure of the first corum to link the same remarks to the

Applicant’s trial deprived it from concluding the trial Judge’s bias against the Applicant.

(v) That the trial Judge’s bias was so serious that the proviso to section 92 of the Act could not be invoked.

(4) leave to rely on another additional ground at the hearing of Enclosure 80(a). That additional ground is in fact an extension of the ground in paragraph 5(12) of Enclosure 80(a) and in substance it posed the question as to whether section 94(2) including the proviso thereto of the Act is unconstitutional and void and is of no effect as it impinges on the judicial independence of individual judges of the Federal Court. This notice, Enclosure 124(a), is dated 2^nd September, 2004.

As the effect of the applications in Enclosures 80(a) and 89(a) is to reopen, rehear and review appeals that have already been heard and disposed of on their merits, a preliminary objection was taken by the Respondent that we do not have the necessary jurisdiction either in law or under common law to relitigate on such appeals. The Respondent further contends that rule 137

of the Federal Court Rules, 1995 on which the two applications are grounded has no application.

My brother, Abdul Malek Ahmad, PCA has already dealt with this preliminary objection and for the reasons that he has stated in his judgment, I concur that the preliminary objection is misplaced as rule 137 does provide us with the inherent powers to review our earlier decisions provided that such an exercise can only be undertaken sparingly and only in rare and exceptional circumstances to prevent injustice.

Following our ruling that rule 137 is not ultra vires the Act or the Federal Constitution and that we can invoke our inherent powers under that rule, no objection was taken by the Respondent for the applications for leave in Enclosures 97(a) and 124(a) and we accordingly granted leave to the Applicant to rely on the additional grounds in his applications to review.

As there was overlapping in the nature of the grounds relied upon to support the applications to review, those grounds became clearer after the submissions of both Mr. Karpal Singh and Mr. Christopher Fernando, the Applicant’s lead Counsel, as both of them confirmed that they were raising the following issues to support their applications to review.

(1) Whether the impugned judgment has any legal effect as it was

delivered pursuant to a provision of the law which impinges on

the independence of individual Judges.

(2) Whether the remarks on the conduct of the trial Judge

made in the contempt proceedings against Zainur Zakaria

(i) had the effect of depriving the Applicant of one tier of

appeal.

(ii) had the effect of supporting a ruling that the trial Judge

had infringed the provisions of rule 3(1)(d) of the Judges’

Code of Conduct, 1994 .

(iii) should have been considered by the first corum as forming a link (and not considered in isolation as was done) to establish the trial Judge’s bias against the Applicant.

(3) Whether the first corum had correctly invoked the proviso to

section 92(1) of the Act bearing in mind that the trial was flawed as the trial Judge was biased. I need to mention here that in Enclosure 97(a) reference is made to the proviso to section 92 of the Act as the relevant law applicable. This cannot be right as the relevant proviso must be the proviso to section 92(1) of the Act as firstly sub-section (1) of the section is the only sub-section that has a proviso to it and secondly what is meant to be conveyed is that despite the bias shown by the trial Judge, the first corum still maintained that such bias did not amount to there being a miscarriage of justice and relying on the proviso dismissed the Applicant’s appeals. This

the Applicant says amounts to a wrongful approach to section 92(1) of the Act.

(4) Whether there had been a suppression of evidence when the

trial Judge refused to admit evidence showing the

unprofessional conduct of two named prosecutors in attempting

to procure fabricated evidence tending to show the Applicant’s improper sexual conduct.

Since the right to review depends on the compelling circumstances of each case, I shall in this judgment attempt to consider one aspect of Mr. Karpal Singh’s arguments namely all the issues relating to the applicability of section 94 (2) of the Act and the constitutionality of the proviso thereto.

Section 94 is concerned with the manner to which judgments of this Court are to be pronounced and delivered and for convenience I reproduce the provisions of the whole section as follows.

“94 Judgment

(1) On the termination of the hearing of an appeal the Federal Court

shall, either at once or on some future day which shall either then be appointed for the purpose of which notice shall subsequently be given to

the parties, deliver judgment in open court.

(2) In criminal appeals and matters the Federal Court shall ordinarily

give only one judgment, which may be pronounced by the Chief Justice or

by such other member of the Federal Court as the Chief Justice may direct:

Provided that separate judgments shall be delivered if the Chief Justice so determines.

(3) The judgment of any member of the Federal Court who is absent may be read by any other Judge.”

Our focus however is on sub-section (2) and its proviso, the origin of which can be traced to similar provisions appearing in section 31(2) of the Courts Ordinance, 1948 which has since been repealed and section 62(2) of the superseded Courts of Judicature Act No.7 of 1964.

In interpreting sub-section (2)of section 94, Mr. Karpal Singh drew our attention to the format in which judgments in criminal appeals of this Court are to be prepared and delivered. He took exception to the fact that the impugned judgment is embodied in two separate written judgments delivered by two members of the first corum whilst the third member did not write any judgment at all. On its own, each of the two separate judgments dealt with separate subject matters, one on conviction and the other on sentence, and according to Mr. Karpal Singh neither of the judgment is complete. He contends that each judgment should have dealt with conviction and sentence jointly rather than have the subject matters of the appeals split up as was done in the Applicant’s appeals. This is particularly

so as the notices of appeal relate to both convictions and sentences.

Since there are two separate judgments, then by implication the Chief Justice must have so directed, exercising his powers to do so under the

proviso to section 94(2). Mr. Karpal Singh then questioned the constitutionality of this proviso as it impinges on the judicial independence of individual Judges.

From the precise and unambiguous language of section 94(2), we agree that the usual and accepted practice is that there will be one judgment be it written or oral, delivered at the conclusion of the hearing of a criminal appeal or matter and this can only happen where all members of the corum have reached consensus and are unanimous in their decisions. The unanimous decision will then be delivered by the Chief Justice as a judgment of the Court and again this can only happen when he presides as a member of the corum. If he does not so preside, then he directs a member of the corum to do so and by tradition that burden falls on the most senior member of the corum to deliver the unanimous judgment. This arrangement if I am permitted to state so is in compliance with section 74(2) of the Act which provides that in “the absence of the Chief Justice, the most senior member of the Court shall preside.”

As an extension of the arguments of the learned Attorney General, who appeared for the Respondent, it is my considered opinion that section 94(2) does not prevent or debar separate written judgments being given by

the other members of the corum even though the consensus reached had been a unanimous one. This is so as the reasons relied on to arrive at the unanimous conclusion need not necessarily be the same for each member of the corum and it is only through the separate judgments that the differing reasonings can be expressed.

So far I have only alluded to the practice of pronouncing a unanimous judgment under the provisions of section 94(2). What happens when there is dissent when no unanimous majority can be reached in the outcome of an appeal. That situation manifests itself particularly in appeals where complexities of the law need to be determined thereby invoking differing views and conclusions. Under these circumstances reliance will be had to the proviso to section 94(2) as separate judgments need to be prepared and delivered and the Chief Justice determines who should write the separate judgments. Here there is in Mr. Karpal Singh’s contention interference on

the part of the senior most judge in the country to influence the outcome of the appeal, thereby impinging on the judicial independence of individual judges. He further contends that in so determining, the Chief Justice had run

foul of the oath of office taken by Judges upon appointment pursuant to Article 124(2) of the Federal Constitution.

The element of interference should not arise where the Chief Justice presides over a criminal appeal where unanimity could not be reached. By virtue of his office and seniority he presides over all criminal appeals that are fixed before him and as such there is nothing objectionable to him directing who should prepare and deliver the separate judgments over the criminal appeals he presides. However can the same consideration apply when he directs who should prepare the separate judgments in a criminal appeal where he does not preside? The Applicant maintains that he has no business to direct who should prepare the separate judgments as such direction amounts to interfering with the independence of individual Judges. In this context when one speaks on the independence of the individual Judge it must mean independence to decide a case without fear or favour, without reference from any quarter including any interference from the Head of the Judiciary.

Perhaps the situation can be logically analysed by looking at the role of the Chief Justice when he decides to act under the proviso. He is not, as Mr. Karpal Singh wants us to believe, dictating how a judge should decide a

case, he is not asking the Judge to decide favourably for a given person or authority. He is exercising a function which the law allows him to do i.e. to direct who should prepare and deliver separate judgments; no more no less. I regard such function as the performance of a non judicial duty affecting the administration of justice. It may well be that the complexity of the case warrants the production of more than one judgment and when he determines that should be the case, this determination in my considered opinion should not be regarded as being the basis of an interference which go to the very root of a judge’s function as one who is fair and independent.

Finally I come to the two separate judgments delivered in the Applicant’s appeals and the first question that brings to mind is whether they are concurrent judgments expressing the unanimous decision of the first corum.

To answer this question, the two judgments have to be read in their entirety and the concurrence and unanimity of the decisions made are to be gauged from the language used.

The judgment of Haidar Mohd Noor, JFC , the most junior member of the first corum runs into 59 pages and dealt with the main issue on

conviction. It is headed JUDGMENT OF THE COURT , and throughout the judgment, there is a strong preference in the use of the subjective plural “we” as opposed to the subjective singular “I” together with the corresponding possessive pronoun “our” as opposed to “my”. Thus phrases like “we need not consider, we do not propose, we would in answer say, it is not, in our respectful view, we agree”, are some of such phrases used throughout the judgment and coupled with the heading of the judgment, it is my considered opinion that it is a concurrent judgment concluded after all the three members had discussed the issues raised and unanimously concluded that the convictions stand. The fact that the concurrence of the other two members is not expressed in the judgment makes no difference to my finding as such concurrence has been more than adequately revealed in the language of the judgment.

Mohd Dzaiddin Abdullah, the then Chief Justice who presided in the appeals delivered the second judgment on sentence and although he had headed his judgment in his name his concluding remarks bear all the resemblance of a concurrent judgment. This is how he ended the judgment.

“We are in full agreement with the statement of principle enunciated above.

After considering the reasons given by the learned judge, we are satisfied that the imposition of the sentence of 6 years’ imprisonment to commence from the date of conviction has not occasioned an error or principle of law. Therefore, we see no reason to interfere with the exercise of discretion vested in him.

Accordingly, we dismiss the appeal against sentence.”

Since both judgments have adequately and unanimously decided on the main issues of conviction and sentence, and read together they represent the judgment of the court, the absence of a written judgment from the Chief Judge of Sabah and Sarawak, the third member in the first corum cannot affect the legality of the judgment and neither can it be taken to mean that he has dissented. The fact that he had not produced a written judgment points to the conclusion that since he was in complete agreement to the views of the two members, no purpose would be achieved by a third judgment as he would be merely repeating what has already been adequately

expressed in the judgments of Haidar Mohd Noor, FCJ and Mohd Dzaiddin

Abdullah, CJM.

My brothers, Abdul Malek Ahmad, P.C.A. and Alauddin Mohd. Sheriff, FCJ who have had sight of this judgment agree that for the reasons stated in this judgment, it is our considered opinion that section 94(2) and its proviso do not have the effect of curtailing the judicial independence of any

individual Judge when the Chief Justice determines who should prepare and deliver separate judgments in a criminal appeal or matter. To that extent, the Applicant cannot rely on his objection to section 94(2) and its proviso to support his claim to have his appeals reviewed before another panel of this

Court. My learned brother, Alauddin Mohd. Sheriff, FCJ will now consider the remaining grounds in the applications to review.

Sgd.

Dated: 15^th September, 2004 ( DATO’ SITI NORMA YAAKOB )

JUDGE

FEDERAL COURT MALAYSIA

PUTRAJAYA

Counsel:

Karpal Singh (S.N. Nair, Gobind Singh Deo, Kamar Ainiah Kamaruzaman,

Pawancheek Marican, Zulkifli Noordin, Saiful Izham Ramli, Christopher

Fernando and Marisa Regina with him) for the appellant

(Solicitors: M/s Karpal Singh & Co.)

Tan Sri Abdul Gani Patail , Attorney-General (Dato’ Mohd Yusof Hj Zainal

Abiden, Tun Abdul Majid Tun Hamzah and Ahmad Fairuz Zainol Abidin, Senior Federal Counsel with him) for the respondent

Attorney- General Chambers