> No Transfer for Anwar's case
Datuk Seri Anwar Ibrahim's sodomy case will be tried at the Sessions Court after judge S.M. Komathy Suppiah ruled that the certificate to transfer the case to the High Court, signed by Attorney-General Tan Sri Abdul Gani Patail, is invalid. Komathy then fixed Nov 14 to mention the case.
Before the date was fixed, senior deputy public prosecutor Datuk Mohamed Yusof Zainal Abiden, who is head of the prosecution unit in the Attorney-General's Chambers, had asked the court to fix a hearing date.
However, Anwar's lead counsel Sulaiman Abdullah informed the court the prosecution should submit certain documents such as medical and chemist reports pertaining to the case to the defence before the trial commenced.
In dismissing the prosecution's application (for the case to be transferred to the High Court) today, Komathy ruled that as the certificate was personally signed by Abdul Gani, it was tantamount to a breach of the legal expectation of Anwar that Abdul Gani would not be involved in the case.
Komathy in a 16-page judgment said Prime Minister Datuk Seri Abdullah Ahmad Badawi's assurance that Abdul Gani would not be personally involved in this case had created a legitimate and reasonable expectation to Anwar and the public.
The decision on the validity of the transfer certificate dated Sept 9, 2008, was crucial towards determining whether the case could be transferred to the High Court for trial.
Anwar had opposed the prosecution's application by questioning the validity of the transfer certificate signed by Abdul Gani.
Abdul 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 faces imprisonment of up to 20 years under Section 377B of the Penal Code. He is now free on a personal bond of RM20,000.
Mohamed Yusof who led the prosecution team was assisted by deputy public prosecutors Datuk Nordin Hassan, Mohamad Hanafiah Zakaria, Wong Chiang Kiat, Farhan Read and Shamsul Sulaiman.
Sulaiman was assisted by counsel R.Sivarasa, Sankara N.Nair, Leela Jesuthasan, Edmund Bon, Saiful Idham Ramli, Amer Hamzah Arshad, Latheefa Koya and Mohd Radzlan Jalaludin.
Komathy in her judgment said it was not in dispute that the Prime Minister made this representation but the prosecution's contention that Abdullah was not legally competent to give the promise in view of Articles 145(3) and 145(3A) of the Federal Constitution.
She said these two provisions expressly provide that the discretion to institute prosecution and all other powers incidental to it, is vested in the Attorney-General.
"The prosecution glibly added that the Prime Minister being also a politician could have given the promise to please people he was addressing and the same was not binding on Abdul Gani. It was stressed that it was the AG who had the power under Federal Constitution to make such promise," she said.
Komathy said the solemn words of the head of the executive of this country on specific and serious matters such as those complained of in this case, cannot be trifled with.
She said on the contrary, the Prime Minister must have given the matter due consideration and must have had the overriding interest of justice and due process of law in giving his word that the AG would play no part in this case.
Komathy said the court also did not accept the suggestion that Abdullah was usurping the power given to Abdul Gani under the Federal Constitution when Abdullah gave the promise.
"It must be remembered that at the material time, Abdul Gani, as the principal legal officer of the Government, was the subject of a criminal investigation in relation to the police report by Anwar and the former had threatened the latter with civil action," she said.
Komathy added that Abdullah as the head of the executive rejected the opposition's demand to suspend Abdul Gani and gave the public assurance that the latter would not be involved in Anwar's case.
"I, therefore find that the Prime Minister was not playing fast and loose but gave his word and intended it to be taken seriously. That the Attorney-General's Chambers also took the assurance seriously is evident from the fact that when Anwar was first charged in this court, the Solicitor-General Datuk Idrus Harun led the prosecution team," she said.
Komathy also said Abdul Gani in exercising a quasi-judicial power when he signed the transfer certificate was grounded on a rule of natural justice and the rule against bias.
Komathy said the prosecution also failed to challenge and controvert the assertions by Anwar and his wife Datin Seri Wan Azizah Wan Ismail in their affidavits.
Anwar filed two sworn affidavits dated Sept 22 and Sept 29, 2008, whilst his wife one on Sept 29. The prosecution only filed one affidavit dated Oct 8, 2008, sworn by Idrus.
She said it was trite that in a contest of affidavits, an affidavit must reply specifically to allegations, and if it does not, then those allegations must have been accepted.
Komathy said there was no explanation proffered as to why the facts asserted by Anwar in his affidavit were not refuted by the prosecution.
Before concluding her decision, Komathy also said the decision did not in any way detract or impinge on the absolute authority the AG enjoys under the Federal Constitution in the institution and conduct of criminal proceedings.
"However, this case raises a unique situation where it is evident that any involvement by the AG in this case would seriously undermine public confidence in the administration of criminal justice. That is the compelling and overriding factor that warranted the Prime Minister's promise which this court is prepared to uphold," she said - Bernama.
