Karpal, in his submission before Mohd Zabidin, was unrelenting in his onslaught against the judge, by citing what he claimed were examples of the judge’s lack of objectivity with regards to an Utusan Malaysia report on the trial published last week.
Karpal is seeking to disqualify the judge because of dissatisfaction with the way the court has dealt with Utusan Malaysia’s coverage of the trial.
Utusan had on February 4 published on its front page an article under the heading “Tak rela diliwat lagi” with the photograph of Anwar and Saiful on either side. On page 3, the newspaper also wrote “Berhenti kerana tidak mahu diliwat lagi.”
The next day, Utusan also carried a photograph captioned “Mohd Saiful menunjukkan katil di bilik tidur utama tempat beliau mendakwa diliwat Anwar Ibrahim kepada Hakim Mohamad Zabidin Mohd Diah ketika melawat kondominium tempat kesalahan itu dilakukan...” (Mohd Saiful shows the judge the bed in the master bedroom where he was alleged to have been sodomised by Anwar.”)
Karpal had applied to cite Utusan for contempt as he argued that what was published on Feb 4 was tantamount to contempt of court.
However, Zabidin had dismissed Karpal’s application on the grounds that “the said reports were not carried with the intention of being mischievous and to disrupt trial proceedings when clearly there was no evidence on affidavit or otherwise to show such intention or mischief by Utusan Malaysia.”
Similarly the judge had with regards to the Feb 5 report by Utusan declined to caution the newspaper despite the defence’s contention that the news report was misleading.
Zabidin’s basis of reasoning was that the publication of the picture as evidence regarding the bed had been given in open court the previous day, which Karpal argues did not actually occur.
Today, Karpal reiterated his stand that Mohd Zabidin had not been impartial when making a decision not to take any action against Utusan Malaysia.
“A judge must not only be beyond suspicion and honest but must also not fear to do so. There should be no blanket immunity for judges,” said Karpal.
Karpal claimed that by not cautioning Utusan Malaysia, the judge had in fact “not told the truth and lied”.
“By choosing not to do so, your lordship is guilty of:
1.Not telling the truth, which is sufficient to come to a conclusion that your lordship ought to step down.
2. By doing so, your lordship has forfeited the right to sit on that chair and proceed to hear continue hearing this trial.”
According to the veteran lawyer, the judiciary of the country was in need of redeeming, and Mohd. Zabidin has to “redeem himself”.
The lawyer took to great pains to point out that the photo caption by Utusan was indeed inaccurate because there was nothing in the court audio recordings or document proceedings records to prove that the matter was ever mentioned in open court.
Citing a previous Malaysiakini report, Karpal quoted Mohd Zabidin as stating that “nothing is wrong with that caption, evidence was given in open court..”
“Your lordship did not tell the truth, in fact lied. Your lordship has not other alternative but to step down,” argued Karpal, who is also DAP National Chairman.
Mohd Zabidin appeared unperturbed by Karpal’s call for him to disqualify himself from the case.
Karpal also told the court that Mohd Zabidin could be brought to a judge’s disciplinary proceeding as enshrined under the Code and Conduct of Judges 2009.
Solicitor-General 2 Datuk Yusof Zainal Abiden then countered Karpal’s points by claiming that the photo caption carried by Utusan was in itself very “ambiguous”.
“The caption was ambiguous. It did not specifically refer to the fact that the alleged act took place on the bed.
“The bed was mentioned in open court, and caption was referring to the fact that the alleged act happened in the room, not the bed,” explained Yusof.
Yusof also ticked off Karpal for accusing the judge of not telling the truth.
“To say that the judge is lying is a very strong word. Using strong words against a judge is not acceptable.
“There is certain language to be used when addressing the judge.
We can be firm but we have to be polite.
“I’m not even asking the court to cite Karpal for contempt,” said Yusof.
The lead prosecutor summed up his points by stating that “this application is frivolous, vexatious and an abuse of process,” adding that the case should be dismissed entirely.
“So rule out these proceedings, whatever your lordship decides either for the defence or prosecution, people will criticise.”
He also cautioned that the judge should not choose a side because he might be “worried” about possible criticisms, as that would be tantamount to not fulfilling the duty of a judge.
The 62-year-old Anwar is accused of sodomising Mohd Saiful Bukhari Azlan at the Desa Damansara Condominium on June 26, 2008. Anwar has denied the charge, the second time in 12 years he has faced similar charges.
The former deputy prime minister has vehemently denied the accusations hurled by Saiful, describing it as “evil, frivolous lies by those in power” when the charge was read out to him. He is charged under section 377B of the Penal Code and can be sentenced to a maximum of 20 years’ jail and whipping upon conviction. The trial is taking place 18 months after Anwar was charged in court in August 2008.
Anwar was charged with sodomy and corruption in 1998 after he was sacked from the Cabinet and was later convicted and jailed for both offences. He was freed in September 2004 and later resurrected his political career by winning back his Permatang Pauh parliamentary seat in a by-election in 2008, which had been held in the interim by his wife.
He had earlier led the opposition coalition, Pakatan Rakyat, to a historic sweep of five states and 82 parliamentary seats in Election 2008.
The court will deliver its decision on Feb 18 as to whether the judge should be disqualified from hearing Anwar’s case.