Just four days before Anwar Ibrahim begins his defence against the sodomy charge, he has applied to replace the current Justice Mohamad Zabidin Mohd Diah with a new judge to rehear his trial.Anwar claimed that Zabidin had prejudged and demonstrated bias in ruling that the prosecution had made a prima facie case against him.
This ruling denied him of a fair trial, which is guaranteed by article 5(1) of the federal constitution, said the opposition leader in his application filed at the Kuala Lumpur High Court today. Anwar was accompanied by his wife and PKR president Wan Azizah Wan Ismail, together with his lawyers Karpal Singh and Sankara Nair, to file the application this morning at the Jalan Duta court complex.
In his ruling last month, Justice Zabidin stated that Mohd Saiful Bukhari Azlan, who has alledged that he was sodomised by his former employer Anwar, is a “credible and truthful witness”.
“He had truthfully and without embellishment or exaggeration in his evidence narrated in minute detail how he was sodomised by the accused on the date and at the place stated in the charge. I find him to be a truthful witness and his evidence is reliable and if accepted would establish all the facts required to prove the charge against the accused,” he said.
Karpal told reporters that the ruling showed the judge had made a prejudgment before the trial concluded, thus nullifying the calling of the defence.
“We want a new trial because a fair trial is not shown under these circumstances,” he said.
Defence an 'empty formality'
Karpal pointed out that section 182A(1) of the Criminal Procedure Code stipulates that the judge must consider all the evidence to decide whether the case has been proven beyond reasonable doubt at the end of the trial, not at the close of the case for the prosecution.
“All he is required to do (at this stage) is to find out whether there is a prima facie case without going to the question of truth. (The truth) is something which has to be deferred until after all the evidence is adduced,” he explained. The court fixed next Monday to hear the application before the sodomy trial resumes.
In his application, Anwar cited several case laws stating that the court shall consider all the evidence adduced before it and decide whether the prosecution has proved its case beyond reasonable doubt at the conclusion of the trial.
“Your honour had made a prejudgment in accepting the testimony of SP1 (Saiful) who is the prosecution's main witness as 'truthful' testimony without listening to my testimony which had been revealed as an alibi during cross-examination of SP1,” read the application.
He added that the prejudgment had made the calling for the defence an “empty formality”.
This is Anwar's third attempt to get Zabidin to recuse himself.
Abuse of the legal process
The first application against Zabidin was made in February last year for not issuing a warning to Malay daily Utusan Malaysia after complaints were raised by the defence team. Another was filed last November following allegations that the judge had threatened lead counsel Karpal Singh with contempt.
This was after the defence lawyer had said the judge was out of line with a Supreme Court decision by not allowing an expert witness to supply documents. Anwar withdrew the first application, while the court threw out the second.
Karpal denied that the third application is an abuse of the legal process.
“There is no such thing as abuse of process. We have every right to do so. Datuk Seri (Anwar) is just exercising his legal rights,” he said.
Anwar is charged with sodomising Saiful at the Desa Damansara condominium between 3.01pm and 4.30pm on June 26, 2008. This is his second sodomy trial since 1998, though he was acquitted of the earlier charge on appeal.
source:malaysiakini
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