> Judge to decide on Nov 7
The Sessions Court here will decide on Nov 7 the validity of the certificate to transfer to the High Court the sodomy case involving Opposition leader Datuk Seri Anwar Ibrahim.
Sessions Court Judge S. M Komathy set the date after hearing submissions from both the prosecution and defence.
The decision on the validity of the certificate is crucial as it will determine whether the case can be transferred to the High Court for trial.
Anwar had opposed the prosecution's bid to transfer the case to the High Court by questioning the validity of the transfer certificate signed by Attorney General (AG) Tan Sri Abdul Gani Patail.
Gani is still under probe by the Anti-Corruption Agency (ACA) following a police report lodged against him by Anwar over fabrication of evidence in the investigation of the "black-eye" incident when Anwar was arrested in 1998.
Anwar, 61, is facing trial for voluntarily committing carnal intercourse against the order of nature with a former aide, 23-year-old Mohamad Saiful Bukhari Azlan, at Unit 11-5-1, Desa Damansara Condominium, Jalan Setiakasih, Bukit Damansara between 3.01pm and 4.30pm on June 26.
If convicted, he will face imprisonment of up to 20 years under Section 377B of the Penal Code. Presently, he is on bail on a personal bond of RM20,000.
In today's proceedings, Senior Deputy Public Prosecutor Datuk Mohamed Yusof Zainal Abiden said that Gani had the power to sign the certificate as he was performing an administrative function and exercising his discretionary power conferred upon him personally by law under Section 418A of the Criminal Procedure Code (CPC).
"Hence, notwithstanding any imputation of bias and in order not to stultify the efficacy of the law, the statutory provisions would have abrogated the allegation and exclude bias," he said.
Yusof contended that there was no suggestion by the counsel representing Anwar that the AG had offended against the principles governing exercise of discretionary power as there was no imputation cast upon him that he had done anything forbidden by the law in the issuance of the said certificate.
On the contention by Anwar that Prime Minister Datuk Seri Abdullah Ahmad Badawi in his statement which reported by the media, had guaranteed that Gani would not be involved in this case, Yusof said the authority or discretion to institute a prosecution and all other powers incidental to it, is vested with the AG by virtue of Articles 145(3) and 145(3A) of the Federal Constitution.
He said any promise with regard to the prosecution or anything incidental to it can only be made by the AG and not the prime minister.
"Surely, the prime minister could not be seen to be making promise on behalf of a competent authority which is given the exclusive discretion under the Federal Constitution with regard to prosecution or any matter incidental thereto," he said.
On the other hand, Anwar's lead counsel Sulaiman Abdullah argued that there was no reason to suggest that the Sessions Court was less competent or could not or lack jusrisdiction to hear a public interest case.
Sulaiman said the contention that the reasons why this case should be heard in the High Court, among others that it was of public interest and it involved complicated laws of DNA evidence, were spurious and should not be entertained.
"It is an affront to our justice system and would offend any right minded thinking person... Are the prosecution implying that the Sessions Court, which has heard over thousands of sexual assault cases throughout the country over the years, is suddenly by reason of the personality of the accused inept and incompetent?" he contended - Bernama.
See my comments, "Why Transfer?" - My Journal.
