Sodomy trial transfer: 'PM unfit to give assurance'

Prime Minister Abdullah Ahmad Badawi is “not in the position” to give the assurance that attorney-general Abdul Gani Patail will not be involved in the Anwar Ibrahim’s sodomy case, the Kuala Lumpur Sessions Court heard today.

During the proceedings this morning, the court heard senior deputy public prosecutor Mohd Yusof Zainal Abiden arguing that premier is legally incompetent to provide any such assurance and therefore it is not binding on Abdul Gani (right) .

“He is the prime minister but also a politician. When somebody comes, he will say something good that people want to hear (but these statements are made) in good faith,” Yusof said to murmurs from court.

Abdullah had given an assurance that Abdul Gani will not be involved in the case. This has become the main ground for Anwar’s legal team to object to the prosecution’s application to transfer the sodomy case to the High Court.

Sessions judge SM Komathy Suppiah fixed Nov 7 to deliver her decision on the transfer of the case.

Anwar, who is Opposition Leader and Permatang Pauh MP, has objected to the transfer because the transfer certificate was signed by the AG. Opposition supporters also fear that the transfer of the case could be politically-motivated.

The defence team’s objection was on the basis that the AG should not have played any role in this case as he is being investigated for allegedly having tampered with evidence in Anwar’s trials 10 years ago.

In previous hearings, the prosecution had merely said Abdullah’s remarks - which were submitted to court in the form of media reports - could not be used as evidence since the reports were deemed as hearsay.

Today, however, the prosecution for the first time questioned whether Abdullah has the authority to issue such an assurance about the AG, who is the government’s legal adviser.

Explaining, Yusof said the AG is the sole person who holds the discretion under the federal constitution to institute prosecution and any promise with regard to the prosecution “can only be made by the AG and not the prime minister”.

“Surely, the prime minister cannot be seen to be making a promise 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,” he said.

“Even if the prime minister is said to have the authority to do it (to make the promise), legitimately, it must be subjected to and qualified by the express provisions of the law.”

He then went on to say “the prime minister is not in the (legal) position” to make the assurance.

At this point, Justice Komathy sought clarification.

Komathy: Isn’t it true that the AG is the government’s legal adviser?

Yusof: Yes

Komathy: Would it be reasonable to assume that the prime minister would have consulted the AG before making the statement?

Yusof: [...] He is the prime minister but also a politician. When somebody comes, he will say something good that people want to hear (but these statements were made) in good faith.

Komathy: It’s the prime minister’s promise. Would it not be reasonable to assume that he would consult his legal adviser first?

Yusof: Then we are speculating and I don’t wish to speculate.

The prosecutor then went on a lengthy justification on several other grounds that why the case should be transfer to the High Court, including for security reasons, and reiterated his previous argument that the judge was bound to transfer the case based on precedents.

At the close of submissions, the judge fixed Nov 7 for the decision to decide whether to transfer the case, which will also pave the way for the trial to begin.

Two new affidavits

Anwar was present in court today, accompanied by his wife Dr Wan Azizah Wan Ismail and daughter Nurul Nuha, as well as scores of supporters.

His former speech-writer Munawar A Anees, who is based in the US, was also present. He is in the country to pursue his own court case - the decision went against him yesterday.

At the start of proceedings this morning, Anwar’s lead counsel Sulaiman Abdullah (right) tendered two new affidavits to support the defence case to object the transfer of the case.

The first affidavit was signed by Wan Azizah which stated that she was given an undertaking by the prime minister that the sodomy trial would be conducted in a proper manner.

She said the premier gave her this assurance at a meeting in response to her worries on the possible involvement of Abdul Gani and police chief Musa Hassan in the case.

As a result of the assurance, she had “a legitimate expectation” that Abdul Gani would not be involved, but was then “disappointed” when he signed the transfer order.

The second affidavit by Anwar confirmed that Wan Azizah had told him about the meeting.

Anwar claimed trial on Aug 7 when charged with sodomising his former aide, 23-year-old Mohd Saiful Bukhari Azlan.

If convicted, he could face up to 20 years in jail. He is currently out on a RM20,000 personal bond.

Watch 6-min video of Anwar in court