PUTRAJAYA, 2 July 2009: The Court of Appeal today dismissed an appeal by Datuk Seri Anwar Ibrahim to have his sodomy trial sent back to the Sessions Court from the High Court.
In a unanimous decision, it ruled that no member of the Executive, not even the prime minister, could interfere or fetter with the independent powers of the public prosecutor in respect of prosecutions.
Justice Datuk Abdull Hamid Embong, who led a three-member bench in hearing the appeal, said the prime minister was not the competent authority on matters concerning criminal prosecutions in the country.
“This authority is by virtue of Article 145(3) & (3A) of the Federal Constitution vested solely on the public prosecutor. All prosecutions are in his [or her] name as the representative of the state and public interest,” said Abdull Hamid.
He said the public prosecutor, who doubled as the Attorney-General, may be administratively answerable to the prime minister but certainly not in the area of prosecution, where the Federal Constitution and the public demanded that he or she be independent of any external interference or barriers.
He further held that the transfer certificate signed by Attorney-General Tan Sri Abdul Gani Patail as the public prosecutor was valid under Section 418A of the Criminal Procedure Code (CPC) as he was only carrying out an administrative function when he signed it.
After the descision, Anwar, who was accompanied by his wife Datuk Seri Dr Wan Azizah Wan Ismail, said, “I am disgusted with the decision; it makes a mockery of our judiciary.”
Anwar, 62, was appealing against the High Court decision on 5 March which reversed the Sessions Court’s decision to retain his sodomy case at the Sessions Court.
He was charged with sodomising his former aide, 23-year-old Mohamad Saiful Bukhari Azlan, at Unit 11-5-1, Desa Damansara Condominium, Jalan Setiakasih, Bukit Damansara between 3.01 pm and 4.30 pm on 26 June 2008. On 18 June this year, a medical report by Hospital Kuala Lumpur (HKL) has found no evidence of anal penetration of Saiful, raising doubts about the credibility of his charge against Anwar.
One of Anwar’s counsel, SN Nair, told the media that the defence team was considering filing for a review of today’s decision.
Abdull Hamid said then Prime Minister Tun Abdullah Ahmad Badawi’s assurance that Abdul Gani would not be personally involved in this case did not mean the public prosecutor be completely barred from exercising his functions in respects to prosecution.
Abdull Hamid, who presided over the hearing with justices Datuk Abu Samah Nordin and Datuk Jeffrey Tan Kok Wha, in a 17-page skeletal decision said Abdullah’s assurance meant that the public prosecutor (Abdul Gani) should no longer be seen to appear in Anwar’s sodomy proceedings.
“It could not be stretched to mean that the former prime minister intended to bar the public prosecutor from exercising his formal statutory functions, such as putting his signature on the transfer certificate,” he said. – Bernama
