Why Tommy Thomas Failed to Make a Convincing Case on the Anwar Acquittal

Why Tommy Thomas Failed to Make a Convincing Case on the Anwar Acquittal

In an article appearing in The Malaysian Insider, Tommy Thomas — a respected barrister known for taking high-profile cases, and for advocating Pakatan Rakyat at every opportunity — leveraged his place as a lawyer to undermine the judiciary.

He wrote a lengthy opinion piece but for the educated reader he failed to make a convincing case.

The thrust of the article is that regardless of whether Datuk Seri Anwar Ibrahim was acquitted or convicted in his Sodomy II trial, the entire process was rigged by the Government: A conviction would have been proof of political control of the judiciary, while an acquittal is … proof of political control of the judiciary.

His argument is essentially that unlike in a good-government spot like Zimbabwe or Myanmar, Malaysia ran a politically-motivated prosecution, where one could tell that the trial was rigged because Anwar kept losing arguments, and the prosecution was allowed to proceed after closing its evidence. As additional proof of his argument, Thomas notes that the Government put out a press release after the acquittal praising the result.

(If this seems inherently contradictory, this is how Thomas becomes when discussing politics. Thus, the resolution of the Perak crisis was a threat to the constitution itself because Perak’s state assembly was not dissolved and new elections called; however, Anwar’s famous September 16 threat to do the exact same thing was a perfectly reasonable, legal thing to do because … it was acceptable in Perak.)

As Thomas is merely repeating Pakatan Rakyat talking points, his economics discussion is not relevant here.

His comparisons to Zimbabwe (where the Opposition leader Morgan Richard Tsvangirai’s wife was apparently murdered and he nearly killed as he entered into the power sharing agreement, and where he now faces prosecution for treason) and Myanmar (where no one is quite certain when Aung San Suu Kyi will next be imprisoned) are laughable, even ridiculous, but this is also by now the normal Opposition mantra.

Instead, it is vital to understand what Thomas is doing in his discussion of the legal aspects of Anwar’s trial, and why his explanation is a clever masking of a terrible round of well-poisoning.

Before one gets to the actual mechanism by which one adjudges guilt and innocence, one must look at the lawyers. The defence lawyers are always interested in exculpating their client, within the bounds of ethics and law. The prosecutor — in this case, Solicitor-General II Datuk Mohd Yusof Zainal Abiden, one of the most respected lawyers in the country — is charged not just with attempting to prosecute the accused, but also weighing whether prosecuting him is in the Government’s best interests.

Thomas has essentially called Mohd Yusof a disgrace to the profession. This despite the fact that it is well-known that Mohd Yusof agreed to undertake this case only on the promise that it would be a fair trial.

Thomas also implicitly argues that no Malaysian can ever receive a fair trial if the Government wants to prosecute — and if there is a trial, the Government by definition always wants to prosecute. There is no evidence adduced for this other than a series of “everyone knows” statements.

At the heart of Thomas’s complaint are two core points: (1) The judge’s rulings and demeanour were always against Anwar, so the reversal is proof that the judge was politically directed; and (2) the judge allowed the case to proceed against Anwar after the prosecution closed its case, which in turn also proves that the case was politically motivated.

Thomas begins: “The only sure way for any lawyer to predict an outcome in a lengthy trial like Anwar’s is to review the trial judge’s overall conduct of that trial and then make a projection.” From there, he asserts that “applying the only rational basis available to those legally trained, the conduct of the judge during Anwar’s trial was consistently in one direction: totally in support of the prosecution’s case, and wholly unsympathetic to the accused. Hence, a conviction was inevitable.”

Any trained lawyer knows that there is no “sure way for any lawyer to predict an outcome in a lengthy trial.” The judge is still a human being, and the human decision maker can go in the opposite direction he seemed to be going.

You try to read the court from its response to motions and evidence, and try to tailor your presentation of argument and evidence accordingly. If you are good, you are right more often than not. But even then, lawyers are not mind readers, and so can guess wrong on what the court is really thinking.

Worse, Thomas is blatantly mis-stating the course of this case. Not only did Anwar not lose every argument he put forward (the court threw out some of the DNA evidence on which the prosecution relied), but he was allowed to put on expert after expert, and file motion after motion, in his defence. If anything, many legal experts were amazed at how open the court was to almost everything both sides put forward.

An honest reading of the course of this years-long process is that the court was determined to let both sides put on all of the evidence they could reasonably adduce, so that at the end, there was no basis for arguments that one side or the other was favoured.

Turning to the fulcrum of Thomas’s argument: The Court allowed the case to proceed after the prosecution rested its case. Therefore, the Court had already made up its mind to convict Anwar, and the reversal is a clear sign of a controlled judiciary.

To understand where Thomas leads his readers astray, one must understand that some of what he lays out is true. The Government, and never the accused, has the burden of proof; the Court must decide, at the close of the evidence, if the prosecution has carried its burden to that point, and if not, dismiss the case; and only if the prosecution has, can the Court call the defence to meet the prosecution’s case.

What he leaves out is that prosecutors almost never bring cases to trial if they lack the evidence needed to reach the point at which the defence must put on its case, because it would be a tremendous waste of human and monetary resources to put on a case that will be dismissed.

Veteran prosecutors like Mohd Yusof would not proceed with a high-profile trial like Anwar’s if they could not clear this hurdle. Treating the court’s conclusion that the defence needed to meet the Government’s case as some sort of once-in-a-lifetime travesty of justice is simply not based in meaningful courtroom experience.

Thomas’s argument means that every time the defence must meet the prosecution’s case, and yet is acquitted, there is some sign of monkey business, rather than merely good lawyering by the defence team.

Karpal Singh should be offended.

Thus, the acquittal was not, as Thomas would have it, “a U-turn of massive proportions.” To the contrary, it is how criminal cases always work when there is an acquittal — the court allowed the prosecution to move forward, and the defence sufficiently undermined the prosecution case to cause the court to realise that the prosecution has not proven its case beyond a reasonable doubt.

The final argument Thomas puts forward that merits a response is that the Government’s touting of the outcome is proof that the outcome was predetermined. Aside from the usual round of “everybody knows,” he relies on two points. First, that the Government managed a press release praising the decision within an hour (“Our bureaucracy never works at that speed”); and, second, that the executive felt the need to make the press release at all.

On the first point, in any country there would have been two press releases, sitting in drafts, waiting that morning, one for a guilty verdict, one for an acquittal. Once the opinion was handed down, the acquittal draft would have received any final edits, received final approval, and then gone out to the press.

On the second point, of course the Government touted this ruling as proof of judicial independence. Prime Minister Datuk Seri Najib Razak has made the rule of law the centrepiece of his Government, but unlike in the other countries Thomas names, he has to deal with a telegenic Opposition leader with long-established media and diplomatic contacts who treats the late arrival of his coffee service as proof of a Government conspiracy against him.

The Prime Minister would therefore be forced to extol the independence of our judiciary, to overcome the work of Anwar, Pakatan, and of course, as a long-standing and well-known partisan polemicist for the Opposition, of … Thomas himself. There is nothing extraordinary in this, except that our Prime Minister must spend time and effort vindicating a judiciary against the lawyers who profit from practising in it.

Ultimately, Thomas’s argument is a form of well-poisoning that will continue even after GE13, for if the courts are, as he claims, inherently prone to political manipulation, should PR win, why would a BN supporter believe he will obtain justice in court?

And if the game is so terribly rigged, why should anyone hire Tommy Thomas in the first place?