Anwar's appeal rejected, trial on July 8

Opposition leader Anwar Ibrahim suffered a setback when the Court of Appeal dismissed his appeal for his sodomy trial to be heard at the Sessions Court instead of the High Court.

This was likely to be his final bid to have his sodomy trial held in the lower court, ending a long wrangle over where the case should be heard.

Amid widespread doubts over the standards of Malaysia's judiciary, Anwar's supporters have said they fear authorities will be able to manipulate the case more easily in the High Court as compare to the lower court.

His trial is scheduled to start on July 8, but tomorrow has been fixed for the opposition leader's application to get all the documents relevant to his sodomy case from the prosecution.

However, what was important in today's decision was the court deeming the prime minister having no authority in giving public assurances that the attorney-general (AG) would not be involved in the case or any other cases.

"In our view, the PM is not the competent authority on matters concerning criminal prosecutions in our country," said justice Abdull Hamid Embong, who led the three-member bench.

He added that this authority under Articles 145 (3) of the Federal Constitution is vested solely in the public prosecutor (AG).

"All prosecutions are in his name as the representative of the state and public interest. No member of the executive, not even the PM can interfere or fetter this independent powers of the AG in respect of prosecutions."

AG under PM only administratively

Besides justice Abdull Hamid, the two other judges on the bench were justices Abu Samah Nordin and Jeffery Tan Kok Wha.

Abdull Hamid said the AG, whose double role as the public prosecutor may be administratively answerable to the PM, it was certainly not the case in the area of prosecution.

He said the assurance and undertaking given by the solicitor-general in his affidavit over the non-appearance of the AG in the court proceedings is reflective enough of the former PM's intention.

"In our view, the assurance given by the former PM should be taken only in the context that the AG should not longer be seen to appear in court proceedings relating to the prosecution of the charge against the appellant.

"It could not be stretched to mean that the former PM intended to bar the AG from exercising his formal statutory functions, such as putting down his signature on the certificate of transfer. It must be remembered that this power under section 418 can only be exercised by the AG."

As such, Abdull Hamid said it is the court's finding that the assurance given to Anwar could not be said to have given him any legitimate and reasonable expectation for a complete non-involvement of the AG in the prosecution's case.

Signing does not prove bias

On the bias issue, the judge said the AG's decision to sign the certificate of transfer from Sessions Court to High Court cannot be deemed or imputed to be biased or that there was conflict of interest.

"Allow us also to make the observation that there is absolutely no evidence, not even any misgiving that Anwar would not get a fair trial at the High Court.

"Considering all factors we feel that it would be better that the High Court deals with this charge against him.

"The assurance given by the former PM that the AG would not take any part in his prosecution was essentially a firm statement that he will get a fair and open trial," he said.

The fact, Abdull Hamid said, that the AG had undertaken to have it transferred to the High Court, would in no way deprive him of his "opportunity to a fair trial".

"The choice of the trial's forum is inconsequential," he said.

Sessions judge erred

The judge also commented on the Sessions judge decision in deeming the transfer certificate signed by the AG as wrong.

"Unfortunately, she paid mere lip service to it and went on to conclude it as invalid."

He also agreed that the Sessions Court judge had acted beyond her jurisdiction and powers in hearing Anwar's objection after the transfer certificate was issued.

"If the Sessions Court ruling takes the form of a declaration, in that it declared the AG in this instance had no right to issue this certificate ( left ), we still hold that such a declaration would be outside the scope of its powers," he said.

In matters of revision, or seeking declaratory orders, the powers lie at the High Court and not the Sessions Court.

For the above reasons, the appellate court rejected Anwar's appeal to have his sodomy case heard at the Sessions Court and upheld the High Court's decision on March 5 for the hearing to be heard there.

Anwar disgusted with decision

The opposition leader, in an immediate reaction to the decision, said he was "disgusted" with the ruling, especially the court's mockery of the assurances made by the former prime minister.

"This is why people will question the judiciary. This is why we have the VK Lingam tape scandal on allegations that the judiciary is not acting correctly," he said.

Following the decision today, Anwar said he would be naïve to think that there will be a fair trial accorded to him.

"How can I be confident of the trial with such background of injustice spanning for more than 11 years," he said.

The opposition leader said he would consult his lawyers on whether to file a review over the appellate court's decision.

"The decision is not appealable. I am most disappointed with the decision today," lawyer Sankara Nair told AFP .

According to the law, Anwar cannot appeal to the Federal Court as this case originated from the Sessions Court.

However, he has the option of filing a review of today's decision again at the Court of Appeal.

Meanwhile, Sankara also told reporters that the prosecution has issued a letter last week stating that it would not provide all the documents on the case to the defence.

"How are we to defend for our client in this case without all the documents. Already, the prosecution is not providing all the documents and this shows our opportunity for a clean and fair trial is not there," he said.

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