Sodomy case transfer: Decision tomorrow
Hafiz YatimPublished: Jul 1, 2009 11:51 AM | Updated: Jul 1, 2009 5:35 PM
The Court of Appeal will decide tomorrow on Opposition Leader Anwar Ibrahim's appeal to have his sodomy trial transferred back to the Sessions Court from the High Court.
UPDATED 5.35PM
The Court of Appeal will decide tomorrow on Opposition Leader Anwar Ibrahim's appeal to have his sodomy trial transferred back to the Sessions Court from the High Court.
The Court of Appeal will decide tomorrow on Opposition Leader Anwar Ibrahim's appeal to have his sodomy trial transferred back to the Sessions Court from the High Court.
Court of Appeal judge Justice Abdull Hamid, who is leading a three-member bench, decided to reserve judgment after hearing submissions from Anwar's lawyer Sulaiman Abdullah and solicitor-general II Mohd Yusof Zainal Abiden.
Other judges on the panel are Justices Abu Samah Nordin and JefferyTan Kok Wha.
"The court would give its decision tomorrow but there will not be any written judgment," Abdull Hamid said.
In March, High Court judge Justice Zabidin Mohd Diah ruled that Sessions judge SM Komathy Suppiah had erred in not granting the transfer order to the High Court despite the attorney- general having signed the order.
Should the appellate court dismiss Anwar's appeal tomorrow, he could apply again in the same court but before another bench for a review.
Also present in court was the opposition leader’s wife and PKR president Dr Wan Azizah Wan Ismail and PKR vice-president Azmin Ali.
Earlier today, the Kuala Lumpur High Court postponed to Friday the hearing of Anwar's application to get more than 10 documents from the prosecution.
Anwar, 62, is charged with sodomising his former aide Mohd Saiful Bukhari Azlan, 23, at the Desa Damansara condominium, Jalan Setiakasih, Bukit Damansara sometime on June 26, last year.
'Various allegations against AG'
In his submission, Sulaiman told the court that Abdul Gani had been part of the prosecution team against Anwar in two previous criminal cases a decade ago.
"Various allegations of misconduct, conspiracy and commission of criminal offences have been leveled against Abdul Gani by Anwar. Among others, concealing and fabricating evidence. This has been going on for more than 10 years.
"It is a fact that former prime minister (Abdullah Ahmad Badawi) after much pressure from the public and the opposition had decided to exclude Abdul Gani from the investigation and prosecution of this sodomy case. This promise was made to Wan Azizah and her daughter (Nurul Izzah)," he said.
Following this, Sulaiman said solicitor-general Idrus Harun took charge of the case when Anwar was charged but it was Abdul Gani who signed the transfer order despite the former premier’s assurance.
"Despite the assurance, we can see Abdul Gani's involvement. This violates the principle of legitimate expectation as the prime minister, in giving the assurance, was heading the executive and also the wishes of the people.
"When we objected, Abdul Gani did not file an affidavit in reply to rebut our claims but asked Idrus to file an affidavit. This showed that he (Abdul Gani) was running from the issue," he said.
is the court which had the final say on the transfer matter.
Furthermore, he submitted that there are other ways for the prosecution to apply for the transfer without Abdul Gani's involvement.
This includes using provisions under section 417 of the Criminal Procedure Code (CPC) by citing reasons for the transfer.
"Under Article 145 of the Federal Constitution, the powers of the attorney- general only relates to prosecution, and not the transfer of criminal proceedings," he added.
Sulaiman also raised the issue of 'bias' in relation to Abdul Gani's handling of Anwar’s cases and the black-eye incident.
Citing the court battle over the Perak imbroglio, the lawyer said the first judge Justice Md Ariff Mohd Yusoff had recused himself because of his past involvement with a political party.
"The Sessions Court judge correctly interpreted the law in dismissing the transfer order. The High Court judge provided a narrow interpretation in allowing the transfer.
“Hence, we feel that this appeal should be allowed," Sulaiman said.
'AG not adjudicating the case'
Mohd Yusof, in his submission, said Abdul Gani in signing the certificate was not adjudicating or presiding over Anwar's sodomy trial, but was merely functioning administratively.
"In all the cases cited by Sulaiman on the issue of biasness it is with regards to judges adjudicating. Abdul Gani as public prosecutor is not presiding the trial and his signature should not be viewed as such," he argued.
He also submitted that the transfer does not violate any of Anwar's privileges or prejudice him, as it is only the venue which has changed.
On the issue of legitimate expectation, Mohd Yusof said the attorney-general is only answerable to the constitution and federal law but not the executive and the prime minister.
"Hence, the prime minister cannot be making assurances to the public at large on something which he may not know.
"I do not think that the prime minister or Wan Azizah was thinking of the AG using his powers under Section 418 of the Criminal Procedure Code," he added.
Court of Appeal judge Justice Abdull Hamid, who is leading a three-member bench, decided to reserve judgment after hearing submissions from Anwar's lawyer Sulaiman Abdullah and solicitor-general II Mohd Yusof Zainal Abiden.
Other judges on the panel are Justices Abu Samah Nordin and JefferyTan Kok Wha."The court would give its decision tomorrow but there will not be any written judgment," Abdull Hamid said.
In March, High Court judge Justice Zabidin Mohd Diah ruled that Sessions judge SM Komathy Suppiah had erred in not granting the transfer order to the High Court despite the attorney- general having signed the order.
Should the appellate court dismiss Anwar's appeal tomorrow, he could apply again in the same court but before another bench for a review.
Also present in court was the opposition leader’s wife and PKR president Dr Wan Azizah Wan Ismail and PKR vice-president Azmin Ali.
Earlier today, the Kuala Lumpur High Court postponed to Friday the hearing of Anwar's application to get more than 10 documents from the prosecution.
Anwar, 62, is charged with sodomising his former aide Mohd Saiful Bukhari Azlan, 23, at the Desa Damansara condominium, Jalan Setiakasih, Bukit Damansara sometime on June 26, last year.
'Various allegations against AG'
In his submission, Sulaiman told the court that Abdul Gani had been part of the prosecution team against Anwar in two previous criminal cases a decade ago.
"Various allegations of misconduct, conspiracy and commission of criminal offences have been leveled against Abdul Gani by Anwar. Among others, concealing and fabricating evidence. This has been going on for more than 10 years.
"It is a fact that former prime minister (Abdullah Ahmad Badawi) after much pressure from the public and the opposition had decided to exclude Abdul Gani from the investigation and prosecution of this sodomy case. This promise was made to Wan Azizah and her daughter (Nurul Izzah)," he said.
Following this, Sulaiman said solicitor-general Idrus Harun took charge of the case when Anwar was charged but it was Abdul Gani who signed the transfer order despite the former premier’s assurance.
"Despite the assurance, we can see Abdul Gani's involvement. This violates the principle of legitimate expectation as the prime minister, in giving the assurance, was heading the executive and also the wishes of the people.
"When we objected, Abdul Gani did not file an affidavit in reply to rebut our claims but asked Idrus to file an affidavit. This showed that he (Abdul Gani) was running from the issue," he said.
is the court which had the final say on the transfer matter.
Furthermore, he submitted that there are other ways for the prosecution to apply for the transfer without Abdul Gani's involvement.
This includes using provisions under section 417 of the Criminal Procedure Code (CPC) by citing reasons for the transfer.
"Under Article 145 of the Federal Constitution, the powers of the attorney- general only relates to prosecution, and not the transfer of criminal proceedings," he added.
Sulaiman also raised the issue of 'bias' in relation to Abdul Gani's handling of Anwar’s cases and the black-eye incident.
Citing the court battle over the Perak imbroglio, the lawyer said the first judge Justice Md Ariff Mohd Yusoff had recused himself because of his past involvement with a political party.
"The Sessions Court judge correctly interpreted the law in dismissing the transfer order. The High Court judge provided a narrow interpretation in allowing the transfer.
“Hence, we feel that this appeal should be allowed," Sulaiman said.
'AG not adjudicating the case'
Mohd Yusof, in his submission, said Abdul Gani in signing the certificate was not adjudicating or presiding over Anwar's sodomy trial, but was merely functioning administratively.
"In all the cases cited by Sulaiman on the issue of biasness it is with regards to judges adjudicating. Abdul Gani as public prosecutor is not presiding the trial and his signature should not be viewed as such," he argued.
He also submitted that the transfer does not violate any of Anwar's privileges or prejudice him, as it is only the venue which has changed.On the issue of legitimate expectation, Mohd Yusof said the attorney-general is only answerable to the constitution and federal law but not the executive and the prime minister.
"Hence, the prime minister cannot be making assurances to the public at large on something which he may not know.
"I do not think that the prime minister or Wan Azizah was thinking of the AG using his powers under Section 418 of the Criminal Procedure Code," he added.
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