The prosecution in Opposition Leader Anwar Ibrahim's sodomy trial presented three grounds in seeking a review of the Kuala Lumpur Sessions Court’s decision not to transfer the case to the High Court.

Solicitor-general II Mohd Yusof Zainal Abiden, who is leading a six-member team of prosecutors, said the case should be heard in the High Court since the attorney-general (AG) Abdul Gani Patail had signed the certificate for transfer of the case.

Sessions judge SM. Komathy Suppiah had ruled against the transfer on Nov 7 last year, saying: "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.”

However, Mohd Yusof argued that Komathy's decision was in contravention of the law and that the High Court should exercise its power to remedy the situation.

He cited three grounds to support the prosecution's application:

  • That Komathy had erred in law in rejecting the transfer and upholding the defence objection;

  • That the AG was merely exercising his administrative powers under section 418(3) of the Criminal Procedure Code (CPC) and not his quasi-judiciary powers; and

  • That the revision was necessary to uphold the rule of law and to avoid bias.

Mohd Yusof agreed that a report lodged by Anwar had elicited an assurance by Prime Minister Abdullah Ahmad Badawi that Abdul Gani would not be involved in the prosecution and investigation of the case.

Anwar's report was lodged against Abdul Gani and inspector-general of police Musa Hassan over their alleged role in covering up the ‘black eye’ incident in 1998.

However, Mohd Yusof submitted that only the AG has legal competence and discretion under the federal constitution to institute prosecution and that any promise with regard to the prosecution “can only be made by the AG and not the prime minister”.

"The prime minister is not legally competent to sign the transfer order, whereas the AG can sign the certificate of transfer," he said.

He therefore urged Justice Zabidin Mohd Diah to set aside Komathy's order and allow the prosecution's application to transfer the case to the High Court in accordance with section 418(3) of the CPC.

sulaiman abdullah Anwar’s counsel Sulaiman Abdullah (left) submitted that Komathy was right in law in not recognising the AG's role in the case.

"The AG is disqualified following the assurance made by the prime minister. There are other legal persons who can sign the certificate of transfer and it need not only be the AG,”said Sulaiman, querying why it is necessary for Abdul Gani to be the signatory.

“This is not a normal case. The person who signs it has been disqualified from signing it. Abdul Gani should have withdrawn from signing the certificate following Anwar’s allegations.”

The hearing will continue tomorrow with further submissions.

Defence objection dismissed

This morning, the court dismissed a preliminary objection by Anwar against the revision sought by the prosecution for the sodomy case to be heard in the High Court.

the charge against anwar ibrahim sodomy allegation trial 070808 Zabidin, in his ruling, said that the court has wide discretionary powers to listen to prosecution's appeal and that the court will then make a decision based on the merits of the case.

Anwar, also withdrew his bid to disqualify Mohd Yusof from conducting the trial. Sulaiman informed Zabidin that the defence decided to withdraw its application after Mohd Yusof, in an affidavit, denied he had seen the investigation paper in Anwar's ‘black eye’ incident in 1998.

Sulaiman said that, based on the affidavit, the defence now has no basis to disqualify Mohd Yusof after having earlier suggested that he was among lawyers who had represented then attorney-general, the late Mohtar Abdullah, in the 'black eye' case.

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.