Datuk Seri Anwar Ibrahim's lawyer today argued in court against the involvement of the Attorney-General in the politician's sodomy trial, saying that the two men had a "bad relationship and unresolved matters".
Lawyer Sulaiman Abdullah told Sessions judge S.M.Komathy Suppiah: "Based on past records and events, it is abundantly clear that DSAI (Datuk Seri Anwar Ibrahim) and the AG have a bad relationship and unresolved matter, which require further investigations.
"There exists a reasoned perception that the AG has an "axe to grind" against DSAI."
Sulaiman said Prime Minister Datuk Seri Abdullah Ahmad Badawi had publicly stated that the AG Tan Sri Abdul Gani Patail would not be involved in respect of this case against Anwar.
"At the last mention on Sept 10, it was conceeded by the prosecution that this was their position as well. Given this, it has given rise to a legitimate expectation (in favour of DSAI and the member of the public) that the AG indeed would have no role to play in the conduct of the prosecution against Anwar."
He said on Aug 7, when Anwar was first charged in court, Solicitor-General Datuk Idrus Harun led the prosecution team. "This was consistent with the position that the AG had been disqualified from handling the case."
"However, on Sept 10, the AG's hand (his signature on the transfer certificate dated Sept 9) in the case became evident. The honourable Solicitor-General no longer led the prosecution team," said Sulaiman.
He said before the AG signed the transfer certificate, the AG must apply his mind to the facts of the case and consider the reasons justifying a transfer, and that this is not a mechanical process whereby the AG purely "rubber-stamps" or endorses the certificate.
He said in a situation where there is a conflict of interest or real danger or suspicion or likelihood of bias, the AG is automatically disqualified from making decision to transfer the case. He said Anwar had lodged a complaint against the AG and that the AG had threatened Anwar with a civil suit.
(In his affidavit of Sept 22, 2008, Anwar said he lodged a police report against Gani on July 1, 2008 and that Gani had filed a letter of demand dated July 11, 2008.)
Sulaiman said the PM's representation has not been revoked or contradicted and continues.
"It is therefore surprising that the AG has stepped into the arena (from which, he has been barred) by signing the transfer certificate."
He submitted that the court should reject the transfer certificate so as to uphold Anwar's expectation that the AG would not be involved in the case.
"Without the involvement of the AG, no transfer certificate may be signed validly. The certificate dated Sept 9 is null and void," said Sulaiman.
Earlier in the morning when the trial started, judge Komathy ruled that her court has the discretion to hear submissions on the defence objection questioning the validity of the certificate produced by the prosecution to transfer Anwar's case to the High Court.
She rejected ae preliminary objection by the prosecution which contended that it was mandatory for the Sessions Court, under Section 418A (3) of the Criminal Procedure Code, to transfer the case to the High Court once the transfer certificate had been issued by the prosecution.
She made the decision based on four cases, including the corruption case of former Sawit Kinabalu Group managing director Datuk Wasli Mohamad Said where it was held that the Sessions Court had the jurisdiction to determine the validity of the transfer certificate in question.
She also denied the application by Datuk Mohamed Yusof Zainal Abiden, head of the prosecution unit in the Attorney-General's Chambers, for a stay of execution of her decision pending the prosecution's filing for revision at the High Court.
However, Komathy granted the prosecution's application for the AG and Solicitor-General to file affidavits to support its (prosecution) submission on the defence objection. The submission by Sulaiman continues today (Wednesday). The prosecution will also submit today.
Anwar, 60, is charged with voluntarily committing carnal intercourse against the order of nature with his former aide, Mohamad Saiful Bukhari Azlan, 23, at Unit 11-5-1, Desa Damansara Condominium, Jalan Setiakasih, Bukit Damansara between 3.01pm and 4.30pm on June 26.
PM Pat Lah had said before that in no uncertain terms AG Abdul Ghani Patail should not be involved in any way in the case. But,by signing the transfer order the AG had blatantly shows disrespect on Pat Lah's order and now he is directly involved in this case.
Before delivering her ruling today, Judge Komathy had turned towards lead prosecutor Mohd Yusof and dropped a remark puzzling those in court.
"Do I look nervous? I am," she said, without elaborating.
Why was she nervous? Could it be that she knew that she had to face the consequence latter?
Judge Komathy had made her initial ruling that she has the jurisdiction to hear the defence team's argument against the transfer of the case, but her dilemma isnt over yet.
Will there be a repercussion and would the honourable judge earn the wrath of the 'warlords' who walk the corridors of power? Judge Komathy could even be transferred because of the unfavorable decision. Is that what she meant by the phrase "do I look nervous? I am".
Read here, here, here and here.
For now this is a psychological victory for Anwar.........
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