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| Update Sodomy trial remains at High Court |
| Written by Chua Sue-Ann | |||
| Thursday, 02 July 2009 15:52 | |||
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Court of Appeal Judge Datuk Abdull Hamid Embong read the unanimous decision of a three-member panel after hearing submissions on Wednesday where Anwar disputed the transfer certificate signed by Attorney-General (AG) Tan Sri Abdul Gani Patail. Abdull Hamid, who sat with Datuk Abu Samah Nordin and Datuk Jeffrey Tan, said there was "absolutely no evidence, not even any misgivings" that Anwar would not get a fair trial in the High Court. Abdull Hamid added the choice of forum for the trial was "inconsequential". When the outline judgment ruling was read, Anwar could be heard muttering "no way" and "I've gone through", in reference to his 1998 sodomy trial. Abdull Hamid said while the court was conscious of public perception on the case, given former Prime Minister Tun Abdullah Ahmad Badawi's public assurance on Abdul Gani's non-involvement in the case, it would be an "exaggeration" to say the public had legitimate interest to see the AG "forbidden" from prosecution. The judge also said Abdullah's assurance could not be said to give rise to "any legitimate or reasonable expectation for a complete non-involvement of the public prosecutor in this case". The prime minister was "not the competent authority" on matters concerning criminal prosecutions and could not give binding public assurance even if the AG was "administratively answerable" to the prime minister, Abdull Hamid said. "No member of the executive, not even the prime minister can interfere or fetter with this independent powers of the public prosecutor in respect of prosecutions. "The assurance made by the former prime minister must not be taken to mean that the public prosecutor is to be completely barred from exercising his function in respect of this prosecution," Abdull Hamid said. According to Abdull Hamid, Abdul Gani's non-appearance in court proceedings following Abdullah's public announcement was "reflective of the former prime minister's intention". On the transfer certificate, Abdull Hamid said Section 418a of the Criminal Procedure Code (CPC) conferred the public prosecutor statutory power to have any case transferred to any forum of his choice. "This power is personal to the public prosecutor and only he may exercise it... The public prosecutor need not give his reasons for his choice," Abdull Hamid said. He also noted Article 145 of the Federal Constitution was the "source and force" of this special powers of the public prosecutor. Abdull Hamid also said the Sessions Court had "no choice but to dutifully comply" with the certificate of transfer as it was a "mandatory requirement", adding that the subordinate court was wrong in finding the certificate invalid. Sessions Court Judge SM Komathy Suppiah on Nov 7, 2008 dismissed the transfer certificate as "invalid" after deciding that there was legitimate expectation that Abdul Gani would not participate in the sodomy case. High Court Judge Datuk Mohamad Zabidin Mohd Diah on March 5 later revised that decision, moving the high profile sodomy trial to the High Court. Met later, Anwar reiterated that Abdul Gani should not have any involvement in the sodomy trial as he had made various allegations against Abdul Gani. "Do I expect a fair trial? It remains to be seen. "I'd be very naive if not stupid to accept that it's going to be completely fair," Anwar said. Anwar also said he would seek legal advice before deciding if he would file an application to revise the Court of Appeal's decision. The Kuala Lumpur High Court on Friday will hear the opposition leader's application for documents and evidence ahead of the trial proper. The former deputy prime minister last year pleaded not guilty to sodomising his former aide Mohd Saiful Bukhari Azlan at Bukit Damansara on June 26 last year.
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