KUALA LUMPUR, 5 March 2009: Datuk Seri Anwar Ibrahim’s sodomy case will be tried in the High Court and not the Sessions Court.
High Court judge Datuk Mohamad Zabidin Mohd Diah made the ruling today in favour of the prosecution which sought to revise the Sessions Court’s decision to retain the trial at the Sessions Court.
Mohamad Zabidin ruled that Sessions Court judge SM Komathy Suppiah had erred in law in ruling that the certificate transferring the case to the High Court, which was signed by Attorney-General Tan Sri Abdul Gani Patail, was invalid.
Mohamad Zabidin said the case would be mentioned in the Sessions Court on 10 March to fix the hearing date in the High Court.
Anwar’s lead counsel, Sulaiman Abdullah, informed the court that he would appeal the decision.
Anwar had challenged the validity of the transfer certificate claiming that Abdul Gani could not sign the document because he was still under investigation by the Anti-Corruption Agency, now called the Malaysian Anti-Corruption Commission.
The investigation was in connection with Anwar’s police report against Abdul Gani for alleged falsification of evidence relating to the “black eye” incident when he was under detention.
Anwar, 62, is 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 3.01pm and 4.30pm on 26 June last year.
If convicted, the Parti Keadilan Rakyat adviser 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.
Mohamad Zabidin, before delivering his judgment, questioned Sulaiman about Anwar’s absence today.
Sulaiman apologised, saying that Anwar was exempted from attending court as it was only a revision proceeding and his view was supported by deputy public prosecutor Datuk Mohamed Yusof Zainal Abiden, who led the prosecution team.
Sulaiman assured the judge that Anwar would be present on 10 March.
In his 18-page judgment, Mohamad Zabidin said that the Attorney-General was not adjudicating disputes between parties when he issued the transfer certificate under Section 418A of the Criminal Procedure Code.
“Therefore, he was not exercising a judicial or quasi-judicial function. He was merely performing an administrative function involving the exercise of his discretionary power which, under Section 418A of the Criminal Procedure Code, has to be exercised by him personally,” he said.
He said that in this case, apart from the police report lodged by Anwar against Abdul Gani, there was no evidence adduced to show that the issuance of the certificate was actuated by any bias, apparent or otherwise.
Even if bias could be imputed to Abdul Gani, it would have been abrogated by the statutory requirement of Section 418A which made it mandatory for the certificate to be signed personally by Abdul Gani.
Mohamad Zabidin said it was beyond the Sessions Court to adjudicate whether the certificate was valid or otherwise as the subordinate court did not have the jurisdiction to hear an oral application for an order of mandamus, prohibition, declaration or certiorari.
“When the Sessions Court judge decided the certificate to be invalid, she was in fact making a declaratory order. Her declaratory order has the effect of quashing the decision of the prosecution to have the case heard in the High Court, which can only be achieved by an order of certiorari.”
Hence, he said, the Sessions Court had no jurisdiction to entertain the defence’s preliminary objection seeking either to declare the certificate to be invalid or to quash the prosecution’s application to transfer the case to the High Court.
On Prime Minister Datuk Seri Abdullah Ahmad Badawi’s assurance that Abdul Gani would not be involved in the case, the judge said it must be examined in the context that Anwar would not be victimised; and the investigation and prosecution against him and the trial would be conducted fairly in accordance with the law.
Mohamad Zabidin said: “Any promise with regard to the prosecution or anything incidental to it can only be made by the Attorney-General and not the Prime Minister. And surely the Prime Minister could not be seen to be making promises 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.
“I fully subscribe to the above view and hence it is my decision that the issue of legitimate expectation does not arise in this case,” he said. — Bernama
