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Transfer decision on Anwar’s sodomy trial on 5 March

Updated 3.45pm

KUALA LUMPUR, 26 Feb 2009: Opposition leader Datuk Seri Anwar Ibrahim has to wait until 5 March to know whether his sodomy trial will be retained in the Sessions Court or transferred to the High Court.

High Court judge Datuk Mohamad Zabidin Mohd Diah will decide then on the prosecution’s application for a revision to quash the Sessions Court’s decision to retain the trial in the Sessions Court.

Justice Mohamad Zabidin set the date after hearing submissions from deputy public prosecutor Datuk Mohamed Yusof Zainal Abiden, who led the prosecution team, and Anwar’s lead counsel, Sulaiman Abdullah.

The prosecution filed for a revision as well as an appeal on 7 Nov 2008 against the Sessions Court’s dismissal of the prosecution’s application to transfer the case to the High Court, after ruling that the transfer certificate, signed by Attorney-General Tan Sri Abdul Gani Patail, was invalid.

The defence had challenged the validity of the transfer certificate because

Abdul Gani was still under investigation by the Anti-Corruption Agency (now known as the Malaysian Anti-Corruption Commission), following a police report lodged by Anwar on alleged falsification of evidence pertaining to the “black eye” incident.

Anwar, who was exempted from attending the hearing, is charged with sodomising his former aide, 23-year-old Mohamad Saiful Bukhari Azlan, in Desa Damansara Condominium, Jalan Setiakasih, Bukit Damansara between 3.01pm and 4.30pm on 26 June 2008.

If convicted, Anwar, 62, 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.

Earlier, Sulaiman submitted that Abdul Gani should be automatically disqualified from making any decision to transfer Anwar’s case to the High Court because Abdul Gani was in a position of conflict of interest.

He said Abdul Gani, before signing the transfer certificate, must apply his mind to the facts before considering the reasons to transfer, in view of the prime minister’s assurance that Abdul Gani would not be involved in the case.

Sulaiman said this was supported by the fact that there was a personal dispute between Abdul Gani and Anwar, which had been made known to the government and public at large.

He cited a Singapore case where it was ruled that even where no bias or prejudice is being alleged against a judicial officer, a perception of conflict would be sufficient to disqualify the said officer.

“With that, there is extremely strong reason established for the Attorney-General to disqualify himself from taking part in this case as well as in signing the transfer certificate,” he said.

Therefore, the Sessions Court judge was correct in her finding that the transfer certificate was invalid, he said, adding that the judge was also competent to hear a public interest case.

Mohamed Yusof replied that the prime minister’s assurance that Abdul Gani would not be involved in the case meant in layperson’s terms that Abdul Gani would not be directly involved in the proceedings in court.

He also submitted that the Sessions Court judge had erred in law when she decided to entertain the defence’s preliminary objection on the transfer certificate.

He said that under Section 418A of the Criminal Procedure Code, the subordinate courts had to transfer any case to the High Court upon the transfer certificate being tendered to the court. — Bernama

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