COMMENT In one ancient fable, a frog falls into a pail of milk. Unable to scramble out, the creature thrashes around, seemingly drowning. Eventually, however, his frantic struggles churn the milk into butter - and he hops away.

The lawyers for Anwar Ibrahim are hoping for something like the successful coda to the above struggle when they try today for probably the last time to disqualify senior counsel Muhammad Shafee Abdullah from prosecuting the appeal of the Sodomy II acquittal.

The appeal is scheduled to be heard at the Federal Court tomorrow and the day after (Feb 12-13).

Previous attempts by the Anwar defence at Shafee's disqualification were rejected by adjudicating panels whose vision of the law leads them to prioritise normatively inert and liberally amoral technical grounds over what gives the law ballast: its need to locate its reason to be on moral principle.

Thus far Anwar's lawyers' arguments have revolved around Shafee as being unable to be the disinterested officer of the court he would have to be to prosecute the case in the service of justice.

His past involvement as counsel in cases brought by Umno or people linked to the political party was said to have rendered him an interested party and therefore unable to prosecute, in the requisite disinterested manner, the appeal of the acquittal of Anwar in Sodomy II.

To assume a position that past involvement in Umno does not disqualify a lawyer from playing the deputy public prosecutor's role in a court case against Anwar Ibrahim would be like arguing that Bashar al-Assad’s behaviour in the Syrian civil war does not disqualify him from a major role in any post-war arrangement for peace in that country.

Adjudicating panels in this saga of attempted disqualification held that they needed more flagrant grounds for Shafee's removal as DPP from the appeal of the Sodomy II acquittal.      

The most recent attempt at disqualification was marshaled on the grounds of Shafee's involvement in an episode that had also involved former senior police officer, Mat Zain Ibrahim, a cop whose past experience of the subterranean byways beneath the surface of our criminal justice system has left him with a lasting legacy of suspicion.   

 

The episode's convoluted threads allegedly led up to embroil attorney-general Abdul Gani Patail but again the courts remained unconvinced that Shafee's part in the tangled trail disqualified him from being DPP.    

The smoking gun

Going into today's proceedings, the Anwar team's due diligence of the case has unearthed what could be regarded as the 'smoking gun'.

This is the final bit of evidence that should expose like no previous argument Anwar's lawyers had adduced in past disqualification exercises did - that the grounds on which Shafee has proposed to proceed for the appeal possess a fundamental flaw.

Shafee has said the main issue in the acquittal was whether the DNA exhibits that were under the care of investigating officer, DSP Jude Pereira ( right ), were tampered with.

He has said that he found no evidence to indicate that the exhibits were tampered with by Pereira.

The problem here, as it has been with Shafee himself, is the track record of Pereira.

In an inquiry conducted by the Human Rights Commission (Suhakam) on the arrest of five legal aid officers in May 2009, Shafee as chairperson had found key witness Pereira seriously short of integrity in the latter's testimony.

The matter is on public record in the Suhakam archive. Pereira was a key witness in the Sodomy II trial. At the High Court trial judge Zabidin Mohd Diah found he could not rely on Pereira's testimony to vouch for the DNA exhibits' integrity.  

Shafee would have to explain how a person he found wanting in truthful testimony in the Suhakam inquiry can, in the sodomy acquittal appeal, be relied on for integrity of his handling of the DNA exhibits.

In other words, the past is about ready to catch up, if not with Shafee then with Pereira.

TERENCE NETTO has been a journalist for four decades now. He likes the profession because it puts him in contact with the eminent without being under the necessity to admire them.