KL Sessions Court denies transfer
KUALA LUMPUR: By JANE RITIKOS Nov 7, 2008
The sodomy trial of Datuk Seri Anwar Ibrahim stays in the Sessions Court.
Judge S.M. Komathy Suppiah on Friday ruled that the certificate signed by Attorney-General Tan Sri Abdul Gani Patail to transfer the case to the High Court was invalid. She fixed Nov 14 for mention of the case.
Komathy Suppiah said the decision did not impinge on the absolute authority the AG under the Federal Constitution in the conduct of criminal prosecutions.
“However, this case raises a unique situation where it is evident that any involvement by the AG would seriously undermine public confidence in the administration of justice.
“That is the compelling and overriding factor that warranted the Prime Minister’s promise which this court is prepared to uphold,” she said.
Anwar is on trial for sodomising his former aide Mohd Saiful Bukhari Azlan at the Desa Damansara Condominium in Bukit Damansara on June 26.
On Sept 10, the prosecution tendered a certificate signed by Abdul Gani, requiring the court to transfer the case to the Kuala Lumpur High Court.
Anwar had questioned the validity of the certificate due to the police report he had lodged against the Attorney-General over tampering of evidence in the investigation of the “blackeye” incident when he was arrested in 1998.
In response, the Prime Minister gave assurance that the AG would have no role in the case.
Komathy Suppiah cited two grounds to support the submission that the certificate was invalid - legitimate expectation arising from the Prime Minister’s promise and the rule against bias.
On the prosecution’s arguments that the Prime Minister’s promise was not binding on the AG, she said the Prime Minister gave his assurance and intended it to be taken seriously.
She pointed out that the AG took the assurance seriously as shown when the Solicitor-General led the prosecution team when Anwar was first charged in the court.
“That assurance, in my view, created a legitimate and reasonable expectation in the accused and the public that (the AG) will not be personally involved in this case,” she added.
The prosecution had contended that the Prime Minister was not legally competent to give the assurance and being a politician, he could have given the promise to please the people he was addressing.
Komathy Suppiah said it must be accepted that there was “no love lost” between Anwar and Abdul Gani and the defence contended that this had put the AG in a position of conflict of interest.
She said the AG was exercising a quasi-judicial power when he signed the transfer certificate and as such, “the rule against bias would disqualify him from issuing the certificate. For the reasons I have stated, I find the certificate to be invalid.”
Senior DPP Datuk Mohd Yusof Zainal Abiden said the prosecution would seek a review.
Outside the court, Anwar told reporters that he was pleased that the judge had “taken pain to hear arguments from both sides”.