Sodomy trial transferred to High Court

The Kuala Lumpur High Court today allowed a revision application by the prosecution to transfer Anwar Ibrahim's sodomy trial to the High Court.

Justice Mohamad Zabidin Mohd Diah in his 18-page judgment felt Sessions judge SM Komathy Suppiah had erred when she found the certificate of transfer signed by Attorney General Abdul Gani Patail to be invalid.

"Therefore, the Sessions Court decision (not to transfer the case) is set aside, and order to remit the case back to the same court on Tuesday for mention with an order to accept the certificate of transfer.

"This is to facilitate the transfer of the High Court for a hearing date to be fixed," said Mohamad Zabidin in his ruling.

In his decision, Mohamad Zabidin further ruled that Komathy was wrong in hearing the defence's oral objection on the transfer certificate that was signed by the public prosecutor.

He said any misgiving about the validity of the certificate can be raised at the High Court.

"It cannot be the basis for Sessions Court to withhold the transfer of the case to the High Court. On this point alone, the decision of the learned Sessions judge cannot be maintained," the judge said.

On the issue of legitimate expectation and rules against bias, Mohamad Zabidin said although Prime Minister Abdullah Ahmad Badawi had given an assurance that Abdul Gani would not be involved in any investigations, nobody was above the law, not even the head of the executive.

The procedure is the same

Even if assuming that the prime minister was in the position to give such promise, the judge said the important fact that needed to be decided next was on what level expectation that arose from the meeting on July 1, 2008 between Anwar's wife Wan Azizah Wan Ismail and the premier.

This, Mohamad Zabidin said, can be gathered from Wan Azizah's affidavit which stated that the prime minister had given an assurance that Anwar would not be victimised, and that the investigation and prosecution against him and his trial would be conducted fairly and in accordance with law and procedure.

"Therefore, it is my view that whatever expectation that arose from the meeting must be examined in the context of Anwar being assured that he would not be victimised, the prosecution and trial against him would be conducted fairly in accordance with law and procedure.

"The next question is the certificate of transfer which was said to have violated Anwar's hope of not being victimised and his trial would be conducted fairly.

"In other words, would by having Anwar's case be heard at the High Court result in Anwar not getting a fair trial and he would not be victimised?

"The answer is definitely no. The law procedure is the same regardless of whether it is heard in Sessions or High Court. Furthermore, the affidavit by the solicitor general clearly states Abdul Gani's role was merely limited to signing the certificate."

He said there was no suggestion from the lawyers that the AG was involved in making the very important decision to charge the accused.

Mohamad Zabidin said in these circumstances, Anwar's legitimate expectation that he would not be victimised and his trial would be conducted fairly in accordance with the law could not have been violated just because the certificate was signed by the AG.

AG exercised his administrative function

On the issue of bias, the judge said apart from the police report against Abdul Gani by Anwar, there was no evidence adduced to show that the issuance of the certificate was actuated by bias.

"Even if bias can be imputed on the Public Prosecutor (AG), it would have been abrogated by the statutory requirement of section 418A of the Criminal Procedure Code that makes it mandatory for the certificate to be signed personally by him.

"The section confers the AG the power to decide the forum before which a case should be heard and the law does not require him to give reason for his decision. The AG issued the certificate...whereby he was not exercising judicial or quasi judicial function.

"He was merely performing an administrative function involving the exercise of his discretionary power under that section," he explained in rejecting the argument.

Anwar's lawyers immediately said that they would be appealing the decision and is expected to file an appeal tomorrow at the High Court registry

His lawyer Sankara Nair said Anwar was disappointed when he was informed of the decision. Anwar was not present in court today.

Solicitor General II, Yusof Zainal Abiden led a team of six prosecutors while lead counsel Sulaiman Abdullah led a team of Anwar's six lawyers, including Sankara Nair.

On Nov 7, Sessions judge Komathy in ruling against the transfer order had said "The case raises a unique situation where it is evident that any involvement by the AG in this case would seriously undermine public confidence in the administration of criminal justice."

Komathy had said there was an understanding that the AG will not be involved in the case. The assurance was given by Prime Minister Abdullah following a meeting with Wan Azizah, also the PKR president.

Abdul Gani is still under investigation by the Anti-Corruption Agency following a police report lodged by Anwar about alleged tampering of evidence pertaining to the 'black eye' incident in 1998.

Anwar, who is also Permatang Pauh MP, is charged with sodomising his former aide, Mohd Saiful Bukhari Azlan, 23, at the Desa Damansara condominium some time on June 26, 2008.

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