Why Did Anwar Ibrahim Give An Unsworn Statement?

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 [1958] 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 [1959] MLJ 20 and Ng Hoi Cheu & Anor v Public Prosecutor [1968] 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 [1968] 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 [1962] 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 [1997] 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?

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Posts by Eric Choo

Eric Choo is a young lawyer practising in Melaka and the current Legal Bureau Chief of MCA Jasin, Melaka. He tweets at @choows and describes himself as an idealist who wish to see his country progress as one without being divided by ethnicity, race or religion. He believes and hopes that such change can come from MCA. He encourages young men and women who thinks alike to come on board to this journey of political transformation, regardless of your political inclination.

Posted on 22 August 2011. You can follow any responses to this entry through the RSS 2.0.

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40 Responses to Why Did Anwar Ibrahim Give An Unsworn Statement?

  1. Statement from the dock by Anwar Ibrahim- Anwar has not been given a fair and objective trial.

    What else could Anwar have done?
    To a non lawyer, I think this is obviously a political move against an abuse of the court for political move.

    In fact the entire process is nothing but a conspiracy by Prime Minister Datuk Seri Najib to send Anwar into political oblivion.

    Too much discrepancies from the biased judge,
    compromised prosecutor who was taken off voluntarily,
    tempered DNA specimens and many other details point to an orchestrated court formality to send Anwar to jail.

    This reminds me what most Malaysian felt when Anwar was first victimised:
    "If an ex-deputy PM can has a black eye be locked up, what hope do we ordinary folks have for justice?"

    The groundswell of support for Reformasi,
    Anwar's return to Permatang Pauh's Parliament seat with overwhelming majority are evidence that the people are not fooled.

    History has taught us that a dying regime will hold on to power no matter what.
    However, the power of the ordinary folks will bring the an evil regime done. It is just a matter of time.

  2. Gopal Raj Kumar

    The court in such circumstances must give weight to evidence (unsworn) from the dock against all other evidence before it. It is not the fact of giving unsworn evidence from the dock but the failure to corroborate or to controvert, rebut or discredit other evidence and witnesses whose testimony is given under oath.

    A very slippery slope even the best amongst us will not avail of unless very confident of the outcomes. It is described in the privy counsel in a 2011 case as "incompetence" of counsel to engage in such tactics.

    The practice and "right" under the common law (subject to judicial discretion) is being gradually phased out for its unpredictability and unreliability and its interference with the process of justice.

  3. GOD

    Why then did Anwar Ibrahim give up his right to testify on his own behalf? If the fear is that he could end up incriminating himself, he can always use his common law right not to answer questions which are self-incriminating. He has that choice. He must have acted against the advice of his own counsel when he gave up his right to testify under oath. In a sexual assault case like this one, it is fatal to his defence. Or has he something to hide?

    If the idea is control of the podium when he could speak for hours on end, uninterrupted, so he could put forward his case to the media so it could be reported abroad, the world already knows that it is a political trial just like the first one. By the way he should have been cited for contempt in the face of the court. The judge did not cite him for contempt and I don't care to speculate why. Just reading about how justice is meted out in Malaysia makes me sick to my stomach.

  4. GOD

    Making a statement from the dock and not be examined by counsel and cross-examined by opposite counsel and not under oath is the legacy of an earlier period when the accused had no right to testify in his defence. Whether it is under our law evidence or not, the fact that it cannot be tested through cross-examination means that no weight shall be given, can be given to it. So not evidence or if it is evidence no weight shall be given to it, what is the difference?

  5. GOD

    "We all know it's hearsay but People believe it's the truth" Ellese

    Hearsay can be true. It is hearsay because the maker of the statement is not in court and it cannot be tested for its accuracy and veracity.

  6. Archon of Destiny

    The only legitimate and relevant MCA is the Mutant Chinese Association. Stand in the corner, Eric, and put this kacang putih cone on your pointy little head. Yap yap.

  7. Jerine

    There is an option for Accused (not available to witnesses) to give unsworn statement is because the judicial system allows the accused to protect themselves during trial. Remember, innocent until proven guilty rule? If Anwar did not make unsworn statement, chances are, prosecution will use his statement against him. And it should not be seen as an implication of guilt. As simple as that.

  8. A 5

    In DSAI's statement, he has put forth numerous contentious points which are not in his favour, however i don't see you making any comments on them. you merely highlighted those which you in your opinion feel unfair.
    Put it this way, you are only at the ringside watching a bout in the comfort of your armchair, you are at leisure commenting on someone who is inside the ring potentially to be pounded (in fact he was in Round 1 and a proven fact). Place yourself in the ring and fight it out yourself with your bare knuckles, see what i mean.
    in conclusion, you are biased from your first line.

  9. Oneofthesedays

    If you had said you were a MCA lawyer at the top of your article nobody would have read this drivel bro. Cunning. :D

    As controversial as Anwar may be in the integrity stakes he has more integrity that all you MCA people combined…multiplied by 10.

    And if you are really into race-free politics as you claim just what are you doing in MCA.

    Everybody point and laugh at this clown.

  10. r2d2

    Mr.Eric I am just a lay man, in my observation you are just like AG Gani Patil and his dogs, I don't respect a lawyer from MCA another product of shit.There are many good lawyers out there that is why we choose to see them to fight our case. Don't challenge the creditibility of such lawyers they will trash you and all the time you go to court with red face. Malaysian law under UMNO<MCA and MIC is bullshit.

  11. bkt katil

    oi eric…buat malu org melaka la kau ni! tak tau undang2 diam la..itu sijil bpe rm sekilo lu beli?

  12. confusios

    hmm. i think it is quite obvious that it was a politically related move by the defence team. i also believe that the whole prosecution of DSAI is politically motivated, so why cant the defence team be political back? so it seems that everything in Malaysia is politically motivated – especially this article. :)

  13. nookvillage

    Anuar will blame everybody except himself. His attempt to win good perception from members of the public but I pity his family for the sufferings so far.

  14. Ellese

    Very well written. Anwar is playing politics to mislead public just like rpk did with his hearsay SD. We all know it's hearsay but People believe it's the truth. RPK wants to create a perception of truth albeit a false one.

    Similarly with Anwar. He knows his evidence is off little value but public doesn't. He can say what he wants and even lying coz there's no way to test it. But he already achieves his aim: creating a perception. And later when the judge rightly give little importance to his statement people will blame the judge and judiciary. We can see this already and MI and the like will amplify this one sided unverified statement to create a perception of truth.

  15. Das

    The Malaysian Judiciary SUCKS!!!!!
    Das

  16. Anti BN UMNO

    Eric Choo,
    First of all, your stand in the DSAI case are bias and you are not and will never be independent in any of your future decision. You are just a damned green horn and all of your reference is having being tainted with hypocrisy of the lowest kind by apple polishing Najb & BN/UMNO ball at will.

    Could you just concentrate with your lusting boss the soiled leg mada paka as best as you can. So that UMNO will not be trampling on your head anymore in the future. You are a useless scum who doesn't know to differentiate between the left and the right hand.

  17. aruna

    Choo, for a layman like me it is obvious that Anwar would not get fair justice in Najib's court. To say the least let me ask you a simple question as to whether semen could stay intact in the anus which is full of bacteria for three days without decaying. If you say yes then I must say something is wrong with your views. Secondly, the Prosecution is famous for its trial by ambush and denying the defence vital evidence and witnesses. In this instant case such mean methods were employed and do you expect any fair trial for Anwar. So under these difficult and hostile environment Anwar did not have any choice but to speak from the dock without taking the oath. Anwar, knows that whether he takes the oath to testify or not he will be sent to prison. Anwar actually won the fight by highlighting to the international community and his sympathisers that he will not get a fair trial and would be put behind bars again. i read the whole text of his SPEECH in the court and my sympathies are for him and his family. Anwar does not fear persecution. Infact persecution would make him stronger. Please convey my pen ultimate sentence to your peers in MCA.

  18. rocky

    the guy is trying to find some avenues to start his political life and be seen by the high ups in MCA so that he can be picked for some thing in MCA thus he needs an avenue be it here or anywhere else to make his mark. so good luck to him. but he must get his law right as mentioned by vk Lingham

  19. anotherdamansaraman

    If one's innocence can be proclaimed by swearing in the mosque or in court, for sure many criminals would opt for that. If you are are evil to the extend of 'fitnah' a fellow human being, how much weight would you put on swearing?

  20. LMa

    Since it is a political trial, it is best for Anwar to make a factual statement on the matter. As to Malik, Anwar is right to put him in his first place. The recusal application was rejected on a preliminary objection, that it is not a final order. Why make irrelevant judgement and attacking the accused. Is he paving his way to be a Fed Judge to please his political master.

  21. LMa

    Eric, in the first place this is a political trial, all hatched up by Najib, Rosmah, Musa and Rodwan. that is the reason why these 4 people refused to be interviewed. Surprisingly it was Zabidin himself who ruled that they could refuse to be interviewed.

    They were offered by the prosecution to be defence witnesses. They were material witnesses since Siful met them 2 to 4 days before the alleged offence. They refused to be interviewed because of Zabidin's ruling. Their refusal just confim the belief amongst many and succinctly pointed by anwar that they plotted this alleged sodomy charge. And as to the dna corroborative evidence, the judge after a twt had already ruled that the dna samples were admissible. This findings was made based on evidences adduced in the twt. How come a week later, he got that 'najib disease' and and made a u-turn ruling that it was admissible. This is magic man.

  22. noneed

    If Anwar were to choose the option of giving sworn evidence from the dock he might experience the same thing as he experienced with A Paul who could prevent the giving of crucial evidence with "irrelevant, irrelevant, irrelevant" . By giving statement from the dock he could not be prevented from saying what he wanted to say. This young chicko MCA brownie should not try to be too smart.

  23. LMa

    Anear chose to make a statement from the dock since the trial judge is Zabidin. If it had been Ahtar Tahir, the probability is that he would have given evidences on oath.

    Zabidin in his decision to call Anwar's defence said he believed Saiful to be a truthful witness. Ain't that funny consideriing the fact that the Prosecution chose to charge Anwar for consensual sodomy and not forced sodomy. That makes Saiful to be the worst type of accomplice who is totally unworthy of credit. His evidence should not be believed unless corroborated upon in material particulars. Where is the corroboration apart from that suspicious DNA sample which could be planted. This dna corroborative evidence is clearly neutralized by the medical examination conducted by both the Pusrawi and HBKL that there was no evidence of penetration found. On that alone, the Judge should have kicked out the prosecution case.

  24. May Chee Chook Ying

    You know nothing about being faithful to any religion. You only want to score brownie points with MCA. Only Mca will accept upstarts like you. The faithful know how not to use God's name in vain, moron.

  25. Edmund Bon

    Eric

    The confusion arises because A1274 amended to include s173(ha) expressly giving the 3 options. But that is for trials in the subordinate courts. Parliament did not amend s180 accordingly. A1274 was moved to overcome the rigours and confusion caused by Arulpragasan and the string of cases thereafter. The common law position therefore applies under s180 to give the 3 options, and English practice under s5 may also be invoked. In any event, Art8 FC I would argue would allow the application of similar practices of the subordinate courts at the High Court.

    Keep writing for the ONLY blawg!!!

  26. Truth

    It is simple and logical he did so in Sodomy 1 where did it get him?
    Is this not a better approach to appeal to humans sense of fair play and justice?
    Though it is hope against hope!
    Judge Not and You shall Not be Judged………

  27. vk Lingham

    Eric as a lawyer must be more meticulous and careful when you write on law. In a trial the accused when called upon his defence has 3 rightds namely he can remain silent or he can give evidence fromn the dock which means he cannot be cross examined and thirdly he can give evidence under oath like any other witness. Only the accused has this right not the other witnesses. You cannot say that the accused is a witness. Therefore for you to comment wrongly is a shame on you. I appreciate people have their rights to their views and comments but as a lawyer you ought to be more careful in your legal views . Do not be carried away with your MCA status. I can forgive your English but not your lack of legal understanding and knoweldge esp of simple laws like this.

  28. Rakyat Pulau Pinang

    What to expect when the lawyer is from MCA. Sure never favour the oppositions. This guy will sure get his candidacy in the next GE.

    • Paul

      Yes. Najib has taken note of him. Welldone…if this guy wins a seat in GE 13…he'll be given a Deputy Minister post.

  29. Killer

    Right said Choo ! Berani kerana benar, takut kerana salah !

    Reading Anwar's prepared statement in the court today, one feels he wants to make a political statement than defending himself. If he really wants to have a fair hearing, why fear ? If he feels this is a conspiracy then this is his best opportunity to show this.

    • anotherdamansaraman

      Are you kidding? Where have you been all this while? He (and many of us) knows he's not going to get a FAIR hearing. The verdict is a foregone conclusion. He was addressing audience beyond the court. If he's fearful he could have easily make a deal and all will go away. But he chose to fight it. Would you, if you are in his position?

  30. DanteMaiorem

    What about those who swear falsely without fearing God?

  31. DrZ, thanks for pointing that out but perhaps I should have highlighted the part where I wrote "I maintain that it is his right to [make unsworn statement from the dock]" and that "it appears that" there's no provision of that in the CPC. The latest edition of Augustine Paul on Evidence also referred to the case of Ip Ying Wah instead of the provision in the CPC. Nonetheless, whether it is a statutory right or common law right, it is still his right but question remains, as per the title, why he did what he did.

    • Naga

      kindly concentrate on all MCA leaders cases so many ex leaders is being charged we dont know how many more to come Chua's case has been silenced by all of you any Anwar has got all the top lawyers with him definately they know how to advice their client we have never heard your name before maybe you trying to please Najib so that you will be recognised you dont have to show that you are too smart if you were we would hawe known you long ago sorry we dont want to know you in such a cheap way.

    • law2020

      Pls do not quote Augustine Paul. You think he was a fair Judge in Anwar's Sodomy I trial. Maybe you are just the same standard with him – I mean ethic standard.

    • nookvillage

      To make unsworn statement from the dock normally taken by accused who knew pretty well that he will be torn into pieces during the cross-examinations by the prosecutions.The best route is to be unsworn and hope it will be collaborated by other witnesses.This is normally taken by those who knew of his guilt and strategically very sound.

    • 4RAKYAT

      choows

      u know what anwar had to put up with all these months and years from the prosecution and the judge. do you think anwar has got a fair and just deal thus far into the trial?

      now if anwar is your client, how would u counsel him? witness stand or statement from the dock?

      to me your article flies in the face of the ideals proclaimed in your biodata. perhaps that's just me.

      your biodata says you are a "…your lawyer…".

  32. DrZ

    Mr Choo, you better check your CPC, see what year it was printed. the law was amended sometime in 2009/10 to include rights of the accused to give statement from the dock. If the law gives such rights, surely it does not do so in vain. There is purpose of giving such right. Plus, you must not forget DSAI is calling other witnesses who all must take the oath. But, surely, under the current scenario, it is highly probable DSAI will go to jail again. Malaysian judges are extraordinary and they have extra ordinary abilities in handling political case.