Those who have been following the Sodomy 2 trial of Dato’ Seri Anwar Ibrahim must have been surprised by the tactic employed by the defence team today. This is especially true in respect of the prosecutors, who had no notice of Dato’ Seri Anwar Ibrahim’s choice to make an unsworn statement from the dock. Being a practising lawyer, it is of interest to me as to why Dato’ Seri Anwar Ibrahim chose to make an unsworn statement from the dock, as opposed to testifying as a sworn witness in the witness box.
While I maintain that it is his right to do so, it remains suspicious as to why he employed this tactic and evaded cross-examination by the prosecution.
The legal background
From my quick research, it appears that the right of Dato’ Seri Anwar Ibrahim, being an accused, to make a statement from the dock is not provided in anywhere in our Criminal Procedure Code or the Evidence Act. Rather, this is a common law right which originates from the English criminal law in the late 19th century, and which is now integrated as part of our criminal law.
As I stand to be corrected, this right is rarely exercised by any accused and thus there are few case law I can refer to. One of the earliest cases in Malaysia where an accused exercised his right to make an unsworn statement from the dock is that of Ip Ying Wah v Public Prosecutor  MLJ 34. In the Ip Ying Wah case, Buhagiar J who heard the case held that when an accused makes a statement from the dock, he is not liable to any cross-examination by the prosecution team. Therefore, when an accused exercise this right, not only that he need not swear and give evidence under oath, he too will not be subjected to any cross-examination by the prosecution; a stage at which usually the credibility of any witness and/ or any contradiction in the testimony of the witness will be revealed.
Given the fact that the accused need not testify under oath and will not be cross-examined, should the statement of the accused then be admitted as evidence by the courts of justice?
Again, from my quick research, it appears that there are conflicting decisions on this issue. It is important to assess from two cases for the purpose of this article, namely the High Court cases of Wong Heng Fatt v Public Prosecutor  MLJ 20 and Ng Hoi Cheu & Anor v Public Prosecutor  1 MLJ 53.
In the case of Wong Heng Fatt, at p. 21, Smith J who heard the case held as follows:
“I do not consider that a statement by an accused from the dock is evidence in view of the provision of s4(1)(a) of the Oaths and Affirmations Ordinance 1949 the essential part of which reads “… oaths shall be taken by witnesses, that is to say, all persons who… give evidence… before the court…”. Since the appellant was not sworn or affirmed he did not give evidence.” (my emphasis added)
Section 4(1)(a) of the Oaths and Affirmations Ordinance 1949 is now replaced by Section 6(1)(a) of the Oaths and Affirmations Act 1949, which reads:
“(1) Subject to section 7, oaths shall be taken by the following persons –
(a) witnesses, that is to say, all persons who may be lawfully examined, or give or be required to give evidence, by or before any court or person having, as mentioned in section 4, authority to examine such person or to receive evidence.”
Then in the case of Ng Hoi Cheu & Anor v Public Prosecutor  1 MLJ 53, Chang Min Tat J (as his Lordship then was) disagreed with the view of Smith J relying on Section 3 of the Evidence Act 1950 which defines “evidence” as, inter alia, “all statements which the court permits or requires to be made before it by witnesses in relation to matter of fact under inquiry: such statements are called oral evidence…”.
It also pertinent to note at this point that the English Court of Appeal had in the case of Shankley v Hodgson  Crim. LR 248 held that an unsworn statement from the dock is NOT evidence and the view of the English Court of Appeal and Smith J has been followed in Malaysia by Hishamudin Yunus J (now JCA) in the case of Public Prosecutor v Shariff Kadir  5 CLJ 463.
On the basis that an unsworn statement by an accused from the dock is not evidence, what weight should a trial judge attach to such statement?
In the Shariff Kadir case, at pp. 469-470, Hismamuddin Yunus J (as his Lordship then was) held as follows:
“since, as a matter of law, an accused cannot be cross-examined on his unsworn statement made from the dock, such a statement cannot carry the same weight as evidence given in the witness-box under oath…
[T]he weight that should be given to such a statement must be such weight as the judge thinks fit.”
Given the little weight to be attached to an unsworn statement by the accused from the dock, if any, vis-à-vis a statement from a witness under oath, it is no surprise why the English Criminal Law Revision Committee recommended that “nowadays the accused, if he gives evidence, should do so in the same way as other witnesses and be subject to cross-examination”. As such, the Westminster Parliament has abolished the right of an accused to make unsworn statement from the dock vide Section 72 of the English Criminal Justice Act 1982.
Following from that, judges in Malaysia too have called for the abolition of this archaic right (since the right has been in existence in England since late 19th century) including Hishamudin Yunus JCA in the Shariff Kadir case. However, the fact remains that the power lies in our Dewan Rakyat to do so.
So, why did Anwar choose to give an unsworn statement?
Now, having briefly understood the legal position on Dato’ Seri Anwar Ibrahim’s right to make an unsworn statement from the dock, there are many issues that run in my mind.
More importantly, why did Dato’ Seri Anwar Ibrahim and his defence team chose to employ this tactics as they are (or should be) aware from the beginning that there will be little weight, if any, placed on Dato’ Seri Anwar Ibrahim’s statement from the dock.
As a senior politician with a defence team comprising of the best and experienced criminal lawyers like Karpal Singh, I am surprised why Dato’ Seri Anwar Ibrahim chose to exercise his right to make unsworn statement from the dock where such statement should not (NOT that it will not) carry as much weight as, amongst others, Saiful’s (the alleged victim) statement. In order to persuade and convince the Learned Trial Judge to hold in his favour and acquit him, in particular in a trial which is deemed by the Opposition leaders to be a persecution rather than a prosecution, why didn’t Dato’ Seri Anwar Ibrahim make a sworn statement which will, at least theoretically, carry more weight?
In the alternative, is this yet another move on the political chessboard? Is this a politically motivated move that will leave an avenue for the Opposition Leader to attack the judiciary as being biased should he be convicted? I do not know and I cannot say for certain. But one has to look at his statement from the dock.
Parts of his statement (which can be obtained here) read as follows:
“… why did Datuk Haji Abdul Malik Bin Haji Ishak [the Justice of Appeal who heard the recusal application] embark upon a relentless attack on me in the rest of the judgment? In fact, he had no jurisdiction to do so. This is a blatant abuse of judicial power, perhaps in a surreptitious attempt to curry favours of the political masters? Otherwise, how else can one explain as to why he embarked upon such a scurrilous attack on me…” (my emphasis added)
“Y.A. cannot be disabused of what has been fed to Y.A. by Y.A. Datuk Haji Abdul Malik Bin Haji Ishak when delivering a judgment dated 6th July, 2011 which obviously, having regard to the length thereof, must have been prepared well before 6th July, 2011.
This is scandalous.
Then again, why wasn’t the judgment which, even if written after midnight on 5th July, 2011 read out in open court so that I could counter and demolish all the allegations made against me by Y.A. Datuk Haji Abdul Malik Bin Haji Ishak?” (my emphasis added)
“I therefore declare that I have no faith whatsoever that justice will prevail…, this is not a criminal trial. It is a charade staged by the powers that be…”
From this, it raises questions as to why Dato’ Seri Anwar Ibrahim chose to attack on the judgment of Malik Ishak JCA on the recusal application and to question whether or not his Lordship was attempting “to curry favour with political masters”. To strengthen his belief and statement that the judiciary is biased? To reinforce in the public eyes that the judiciary is biased?
Ironically though, the defamation suit by the Opposition Leader against the MP of Rembau, Khairy Jamaluddin, is still on-going and I could not count the number of the letters of demand sent to political opponents threatening defamation suits. Shouldn’t Dato’ Seri Anwar Ibrahim, if he has zero faith in our judiciary, drop all suits and/ or threats to sue anyone in the Malaysian Courts of Justice to prove his dissatisfaction in our judicial system?
And let us not kid ourselves, whilst our judicial system and us do not judge by oaths or swearing, any faithful follower of any religion will fear to swear in the name of God unless he/ she is telling the truth. The man has previously refused to swear in a mosque and the same man is now refusing to swear in the Courts of Justice. Are we not going to ask ourselves why? Perhaps, the fear of God?