A response to Shafee Abdullah – Gerard Lourdesamy

I have a great deal of respect for Tan Sri Muhammad Shafee Abdullah as a senior member of the Bar but his latest tirade against Datuk Seri Anwar Ibrahim, the prisoner of Sungai Buloh, is unwarranted and unfair since the latter cannot respond to the same from his place of confinement.

As an ad hoc deputy public prosecutor whose fiat from the attorney-general expired upon the conviction of Anwar by the Federal Court, he should not be making any further comments. The full judgment of the Federal Court has now been published and everybody can read it and reach their conclusions. The attorney-general has also issued a statement to explain his reasons for the prosecution of Anwar.

In England, it is customary for counsel from the Bar instructed to prosecute a case for the Crown not to make any comments during the trial and after a successful verdict. That is left to the Crown Prosecution Service and the director of Public Prosecutions and, in exceptional cases, to the attorney-general.

It is the prerogative of the defence whether they wish to proceed with their alibi notice. No adverse inference can be drawn if they fail to do so, as rightly said by the Federal Court. The defence in Anwar’s case argued that the alibi witnesses had been harassed and intimidated by the police, thereby rendering their evidence unsatisfactory. In most civilised countries, when an alibi notice is given the prosecution directs the police to investigate the alibi and not harass or intimidate the alibi witnesses so as to deprive the defence of due process. In Malaysia, the practice may be different.

The defence was also handicapped by the restrictive and limited nature of the disclosure permitted under the Criminal Procedure Code that effectively disentitled them from challenging the so-called DNA evidence amongst others.

It is unfair to talk about repentance. Anwar was charged in a court of laws and not in a court of morals. Swearing on the Quran or at the holy mosque in Mecca is not exculpatory evidence. Just like swearing on the Bible at the Church of the Holy Sepulchre in Jerusalem. It has no evidential value.

None of us are paragons of virtue or sentinels of morality. To quote the Bible: “Let he who is without sin, cast the first stone”.

It is equally presumptuous to say that if Anwar had testified under oath the prosecution would have torn him to shreds. Presumption is not evidence. For all we know Anwar as a seasoned politician may have demolished the prosecution during cross-examination.

It is the right of the accused to elect to give a dock statement. No adverse inference can be drawn against it. Is Shafee saying that in the course of his long and illustrious career as a criminal lawyer he did not once advise a client to give a dock statement?

It is equally unfair to accuse any detractor of the decision of the Federal Court, including the Bar Council, of being pro-opposition. Does that mean that the prosecution was pro-establishment and not pro-justice?

Lastly, it was offensive to accuse Anwar of “hiding behind a skirt”. “Hiding behind a skirt” is far better than “chasing after a skirt”

* Gerard Lourdesamy reads The Malaysian Insider.