A syariah lawyer representing Anwar Ibrahim told the Syariah Court of Appeal in Kuala Lumpur today that the chief prosecutor of the Federal Territory Islamic Department (Jawi) represents public interests, not government interests.

Rafie Mohd Shafie said the jurisdiction of a chief syariah prosecutor differs from that of the attorney-general.

“A chief syariah prosecutor cannot ‘pilih bulu’ (cannot randomly choose to charge someone, and not charge others), for he represents public interests and not the government’s,” Rafie said.

“The powers, or discretion of the chief prosecutor, are not absolute (as these can be challenged),” he added.

Rafie (photo) said this in his submission in Anwar's appeal against the Jawi chief prosecutor, its director and Minister in the Prime Minister's Department Jamil Khir Bahrom, in his application for them to prosecute Mohd Saiful Bukhari Azlan for qazaf (bearing false witness).

He said the decision by the Syariah High Court, which ruled that the chief prosecutor cannot be forced to prosecute as he has the discretion, is wrong.

“There is a prima facie case for Saiful to be prosecuted, as shown in the correspondence of the letters provided, and also from evidence by Dr Othman Abdul Hamid (of the Islamic hospital Pusrawi), who first examined Saiful and testified there are no signs of penetration of his rectum,” the lawyer said.

Rafie also said the Syariah High Court was wrong in allowing the preliminary objection and ruling the qazaf application was improper by citing several civil court cases, where syariah law should remain supreme in this court.

Anwar had applied to the Syariah Court of Appeal to review the Syariah High Court decision of April 2010 that struck out his qazaf application.

He filed the application in 2010 for Jawi and its chief prosecutor to take action on Saiful under qazaf, for allegedly lying and not coming up with the four required witnesses to verify his sodomy allegation.

The appeal is being heard before a three-member panel led by Md Yusup Che Teh. The other judges are Yusof Musa and Amran Mat Zain.

Md Yusof fixed Dec 5 to deliver the court’s decision.

'Qazaf does not include sodomy'

Meanwhile, Rusnizam Rahim, a lawyer representing the chief prosecutor, Jawi and Jamil Khir, argued that the offence of qazaf only involves zina (unlawful sexual relations) between a man and a woman, and does not involve sodomy.

“It does not include sodomy and it is wrong to incorporate sodomy as a new offence under qazaf,” he said.

He added that if there is a lacunae, then it could not be incorporated into the law.

Another lawyer, Abdul Razak Muhidin, representing the three respondents said the Kuala Lumpur syariah courts are not empowered nor do they have jurisdiction to handle judicial reviews, unlike the syariah courts in Selangor.

Abdul Razak said Anwar's application was for a judicial review, and asked whether it was right for the court here to consider the application.

The lawyer also wanted the court to consider Anwar's appeal defective as only two out of 15 grounds raised were brought up in submissions.

Abdul Razak asked if this showed that the appellant was dropping the other 13 grounds.

Rafie, who appeared with lawyer Kamar Ainiah Kamaruzaman, said qazaf is not limited to sexual relations between a man and a woman, as the section includes sodomy.

This is because it is also referred to offences done by Prophet David's (Daud) people, who engaged in sodomy, he said.

He also said the court is a syariah court of justice and should consider all applications including judicial reviews.

The lawyer also said that as 15 grounds of appeal were raised in the written submission, it should also be considered as part of the grounds.