PUTRAJAYA: The Court of Appeal yesterday dismissed an appeal by Datuk Seri Anwar Ibrahim to have his sodomy trial sent back to the Sessions Court from the High Court.

In a unanimous decision, it ruled that no member of the executive, not even the prime minister could interfere or fetter with the independent powers of the public prosecutor in respect of prosecutions.

Justice Datuk Abdul Hamid Embong, who led a three-member bench in hearing the appeal, said the prime minister was not the competent authority on matters concerning criminal prosecutions in the country.

“This authority is by virtue of Article 145(3) & (3A) of the Federal Constitution vested solely on the public prosecutor. All prosecutions are in his name as the representative of the state and public interest,” said Justice Abdull Hamid.

He said the public prosecutor, who doubled as the attorney-general, may be administratively answerable to the prime minister but certainly not in the area of prosecution which the Federal Constitution and indeed the public demanded that he be independent of any external interference or barriers.

He further held that the transfer certificate signed by Attorney-General Tan Sri Abdul Gani Patail as the public prosecutor was valid under Section 418A of the Criminal Procedure Code (CPC) as he was only carrying out an administrative function when he signed it.

After the decision, Anwar, who was accompanied by his wife Datuk Seri Dr Wan Azizah Wan Ismail, said: “I am disgusted with the decision. It makes a mockery of our judiciary.”

Anwar, 62, was appealing against the High Court decision on March 5 which reversed the Sessions Court’s decision to retain his sodomy case at the Sessions Court.

He was charged with sodomising his former aide, 23-year-old Mohamad Saiful Bukhari Azlan, at Unit 11-5-1, Desa Damansara Condominium, Jalan Setiakasih, Bukit Damansara between 3.01pm and 4.30pm on June 26, last year.

One of Anwar’s counsels, S N Nair told the media that the defence team was considering filing for a review of yesterday’s decision.

Justice Abdull Hamid said the then Prime Minister Tun Abdullah Ahmad Badawi’s assurance that Abdul Gani would not be personally involved in this case did not mean the public prosecutor be completely barred from exercising his functions in respects to prosecution.

Justice Abdull Hamid, who presided over the hearing with justices Datuk Abu Samah Nordin and Datuk Jeffrey Tan Kok Wha, in a 17-page skeletal decision, said Abdullah’s assurance meant that the public prosecutor (Abdul Gani) should no longer be seen to appear in Anwar’s sodomy proceedings.

“It could not be stretched to mean that the former prime minister intended to bar the public prosecutor from exercising his formal statutory functions, such as putting his signature on the transfer certificate,” he said.

He further said the Sessions Court judge was wrong in finding the transfer certificate to be invalid because when it was tendered, the subordinate court had no jurisdiction or discretion to determine its validity but make the transfer as asked.

He said the Sessions Court judge was not fettered with such powers, and that she had acted beyond her jurisdiction.

“When faced with such a certificate, the subordinate court has no choice but to dutifully comply. This is a mandatory requirement under Section 418A of the CPC,” he said.

Justice Abdull Hamid also said despite the allegations of bias and conflict of interest against Abdul Gani, he was the specific and only officer authorised by law to sign the transfer certificate under Section 418A of the CPC.

“His act cannot be impugned by reason of the imputed bias or conflict of interest,” he said.

Justice Abdull Hamid also said under that section, no one could question the decision by Abdul Gani when he issued the transfer certificate and his decision was final and that the subordinate court must remove the case upon receiving the certificate.

“It confers on him (Abdul Gani) untrammelled and uncontrolled power in very wide terms to effect this requirement,” he said.

Justice Abdull Hamid also said this mandatory effect was also confirmed in a Federal Court which held that the attorney-general had the discretion to initiate courts proceedings in any forum he liked without having to assign reasons for doing so.

He said after considering all factors, the court found that the right forum to initiate Anwar’s sodomy case was the High Court as there was absolutely no evidence that Anwar would not get a fair trial at it. Before ending his judgment, Justice Abdull Hamid stressed that as usual, any decision made by the court would attract critics, commentators and detractors.

When Justice Abdull Hamid was reading the verdict half-way, Anwar appeared dissatisfied and was heard mumbling “No! No!”.

— Bernama