The Federal Court today dismissed opposition leader Anwar Ibrahim's application to remove senior Umno-linked lawyer Muhammad Shafee Abdullah from heading the prosecution's team in its appeal over the politician's acquittal of a second sodomy charge.

NONE This is according to a tweet by Batu MP Tian Chua, stating that the Federal Court had ruled that attorney-general Abdul Gani Patail ( right ) has the right to appoint anyone to be prosecutor.

Court of Appeal president Justice Md Raus Sharif led the five-member bench that includes Federal Court judges Abdull Hamid Embong, Ahmad Maarop, Hasan Lah and Abu Samah Nordin.

Justice Md Raus also agreed with the Court of Appeal that as Shafee was not called as a witness, there is no conflict of interest with him representing the prosecution.

With the decision, the prosecution's appeal on Anwar's acquittal will be heard at the Court of Appeal on Dec 11 and 12.

Senior lawyer Karpal Singh will represent Anwar, while Shafee will heads the prosecution that also comprises DPP Noorin Badaruddin.

Appointed by Gani

Shafee was appointed by Abdul Gani to head the prosecution team in its appeal of Anwar's acquittal on July 11 this year.

His appointment was made under Section 376(3) and Section 379 of the Criminal Procedure Code.

Section 376 (3) reads: "The public prosecutor (PP) may appoint fit and proper persons to be DPPs who shall be under the general control and direction of the PP and may exercise all or any of the rights and powers vested in or exercisable by the PP by or under this Code or any other written law except any rights or powers expressed to be exercisable by the PP personally and he may designate any of such as DPPs or Senior DPPs."

Section 379 of the CPC reads: "With the permission in writing of the PP an advocate may be employed on behalf of the Government to conduct any criminal prosecution or inquiry, or to appear on any criminal appeal or point of law reserved on behalf of the PP.

"The advocate shall be paid out of the public funds such remuneration as may be sanctioned by the Finance Minister and while conducting such prosecution or inquiry, or appearing on such criminal appeal or point of law reserved, shall be deemed to be a ‘public servant'."

NONE However Anwar's lawyer Karpal Singh ( right ) had argued that the appointment should be made under Section 379 and not 376 (3), as 376(3) is in violation of Section 378 which states no lawyers can be appointed in criminal appeals unless it is the PP, DPPs and senior DPPs.

Karpal also said Shafee was present at then Deputy Prime Minister Najib Abdul Razak's house when Saiful came and that Shafee was a potential witness. Therefore his appointment would create a negative perception.

‘Unsafe to convict Anwar'

Kuala Lumpur High Court Justice Mohd Zabidin Mohd Diah had in January last year acquitted Anwar of sodomising his former aide, Mohd Saiful Bukhari Azlan in June, 2008.

Justice Zabidin in his written judgment said it was unsafe to convict Anwar as the court could not ascertain the integrity of the samples taken from the victim's anus because investigating officer DSP Jude Blacious Pereira had opened the plastic bag containing them.

"It was not safe for the court to rely on the DNA result obtained by chemist Dr Seah Lay Hong from the analysis conducted on those samples. That being the case, there was no evidence to corroborate the evidence of Saiful on the factum of penetration," he had ruled.