Karpal Singh

"We say you did not tell the truth. We translate (that) into you lied!" said Karpal in reference to the judge's comment when he dismissed the defence's application to cite 'Utusan Malaysia' for contempt for publishing a mischievious caption with a photograph taken at Desa Damansara Condominium.

The Malay daily had on its front page on Feb 5, published a photograph with a caption: "Saiful showing a bed in the master bedroom, where he was allegedly sodomised by Anwar to judge Datuk Mohamad Zabidin Mohd Diah...."

Karpal said according to an online news report, the judge said the details had earlier been mentioned in open court and therefore the report was not mischievous and there was no grounds for contempt of court.

Karpal said however there was nothing in the notes of proceedings or audio recording to show that the details were "ever mentioned in open court."

"With due respect, you lied. It can and has been proven that you are not being honest. You can't be impartial. You can't be unbiased. On that ground alone, we say, you have no other alternative but to step down," said Karpal.

Meanwhile, on a front page article of 'Utusan Malaysia' on Feb 4 titled: "Tidak rela diliwat lagi", Zabidin had summarily dismissed Karpal's application to cite the paper for contempt, on the grounds that contempt was not committed in the face of the court and that the reports were not carried with the intention of being mischievous and to disrupt trial proceedings.

Karpal said the judge cannot place himself in the position of 'Utusan Malaysia', and come to a conclusion that they did not have an intention.

He said if the judge issued a notice of show cause to the newspaper and if a representative from the newspaper had said they had no intention then that would have been a different matter.

"You chose not to do so. From the word 'go', you were guilty, with respect," said Karpal, adding this was sufficient to reach a conclusion that the judge must step down.

"You have forfeited on the right to sit down and proceed with the trial," said Karpal.

"Nothing personal affront to your lordship, but (this is) something we feel necessary," Karpal told Zabidin at the end of his submission when urging the judge to seriously consider recusing himself from further hearing the case.

Meanwhile, submitting on the recusal application, Solicitor-General II Mohd Yusof Zainal Abiden said the judge's decision not to cite 'Utusan Malaysia' for contempt was not an outright dismissal, as under Order 52 of the Rules of the High Court, the defence can file a motion to cite the newspaper for contempt to court, but they must obtain leave.

He said it was erraneous to give perception to the public that the court had dismissed a motion that was not made formally.

Yusof also questioned which notes of proceedings and audio recordings the defence referred in Anwar's affidavit as they were not in possesion of it at that time.

"This is misleading and this is serious," said Yusof.

(In his affidavit, Anwar had stated: "...the judge declined to caution 'Utusan Malaysia' and to my utter amazement and disbelief ruled that the publication of the picture as evidence regarding the bed had been given in open court the previous day."

"This pronouncement by the judge is not borne out by what actually transpired in open court nor in the notes of proceedings, both written and audio"

Yusof said when asked why he quit, Saiful had in his response, used the word "again" in both of the answers.

"It is proven it was uttered, if that was the basis of the complaint, then the basis of the complaint has been destroyed," he said.

On the use of the photograph and caption, Yusof said the caption was ambiguous.

He said the bed was mentioned in open court when Saiful said that he saw Anwar sitting on the corner of the bed, after he came out of the washroom.

At this point, Yusof said (for Karpal) to say "you lied" is a very strong word.

He said it was not desirable (necessary) to use a strong word against the judge. He said Karpal can do so politely and that certain ethics has be preserved.

"We are not happy," said Yusof, adding that he can make a point without "insulting" (the judge).

He said the reporter could have heard it wrongly but couldn't have done it maliciously.

"Today it is proven what they reported is the truth. The defence owe an apology to the reporter," said Yusof, adding that the matter complained of (about 'Utusan Malaysia') was something trivial.

He said when the judge ruled that documents and materials to be given to the defence, the prosecution did not say that the judge was "bias". He urged the judge not to recuse himself.

Zabidin fixed Feb 18 to deliver decision on the application, saying he would need time and to consider the submissions and cases referred by both parties. -- theSun

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