95. Why Transfer ?

A Commentary by My Journal

Based on press reports of the proceedings to date of the Anwar Ibrahim Sodomy II, and the request for its transfer to the High Court, I would like to make a few comments as a layman.

The AG is at present under investigation on a complaint lodged by the accused (Datuk Seri Anwar Ibrahim) that he (the AG) - the public prosecutor, had tampered with evidence in his case 10 years ago. As a result of that, the Prime Minister had said that the AG will not be involved in this case (what higher authority is there for the AG to report to?).

When asked by the judge, the DPP himself conceded that the AG should not have partaken on the instructions of the Prime Minister. And that is why he is on the floor and not the AG.

That being so, the AG should have by right disqualified himself, and not partaken in anyway in the case. Even signing a document amounts to partaking because it would have amounted to the AG having read the documents and known the consequences to the accused should he be found guilty. Signing a document is not a mechanical process nor a mere formality of rubber stamping.

In the absence of such a disqualification by the AG himself, the transfer certificate rendered would be invalid if signed by the AG. So the argument that only the AG can sign is immaterial.

This is to ensure the credibility of the system and to ensure public confidence of the judiciary.

There is no question of precedence to follow unless the facts of the case, the submissions by the prosecution and defence are similar. This case is unprecedented.

If a sodomy case can be tried in a sessions court, as the court of first instance, then so be it. If Anwar Ibrahim is high profile, so what? A transfer to a higher court should only be allowed if the court or the judge is incompetent to hear the case for various reasons. That being NOT so, the proper court to hear this case will be the present court.

Where there are no laws or if the laws are ambiguous as in the present case, ( the lawmakers would not have been in a position at the time of drafting to think of all possibilities !) , it is the judge's duty to give due weight to the lacuna and prevailing circumstances and make a JUDGEMENT to ensure JUSTICE prevails - My Journal.