Saturday, May 15, 2010

It’s Not a Criminal Trial…

It struck me as odd that some lawyers on the sidelines of Anwar’s trial have been dissecting Karpal’s strategy (though it’s probably the strategy of Anwar’s collective legal team) to highlight the contradiction between Saiful’s claim and the specific legal code under which Anwar is being tried.
While I happen to lean in the camp of those who think it was better to raise the contradiction in this early stage rather than just prior to the curtain coming down on the trial, I have to admit I’m one who thinks the timing of this objection is based upon strategic political considerations – and not legal ones. Therefore, the debate about Karpal's strategy among the legal circles actually misses the central point: What is critical about Karpal's strategy is that it's a legal strategy deployed to expose the fact that this is a political trial. 

I can see the relevance of second-guessing and debating a defense’s legal strategy in a typical criminal case. But then let’s not forget this isn’t, by any stretch of the imagination, a typical criminal case. In a political trial – and that’s what the defense is portraying it as – there is of course a lot more to it than just a legal strategy. In fact, as I’ve argued elsewhere, since nothing about the contradictions and inconsistencies in the case should really surprise us, this legal hair-splitting by lawyers from the sidelines is good banter but the legal merits - or lack thereof - really is inconsequential to the final courtroom outcome.

Indeed, I believe the strategy by the defence team to expose the contradictions sooner rather than later actually supports my view that Anwar’s legal team also realises - and wants the whole country to see – that this as a political trial. Therefore, by exposing from early on what they believe is a deck of cards stacked against them, Anwar, Karpal and the defence team hope to go on the offensive earlier rather than later and hopefully start winning in the court of public opinion by exposing the bias of the court. Of course they’re not getting any help from the mainstream media and have to rely on the wider alternative and even the international media. This approach fits with their position all along that there is a political conspiracy against Anwar and this trial is the means to short-circuit Anwar’s political comeback. 

For this reason, and this reason only, I agree with the strategy taken by Anwar’s team. Karpal and associates have not taken to expose the contradictions in the case not merely for some sound legal or strategic basis as one might do in a typical criminal trial. Rather, their strategy is wholly predicated on the need to cast this trial for what it is: a political vendetta. To do this, Karpal and his associates must effectively frame this for what it is from the start: a political trial. Hence, the judge’s refusal to recues himself from presiding over the case, and now the judge’s refusal to allow the defence to appeal the judge’s ruling to allow Anwar to be tried under Penal Code section 377b reinforces the perception, or so it is hoped by the defence, that political considerations – and not the pursuit of justice - are driving this trial as evident in the courtroom.

I think it was Edmund Burke who said, bad laws are the worst form of tyranny. Along this line, so is a corrupted judicial system.

Rest assured that along with Anwar, we’re all being crippled by this tyranny.  

G. Krishnan