Posted by: jimmycth
SHAH ALAM: As 2010 dawns, the Malaysian court is making an attempt to bulldoze its sodomy case against Opposition Leader Anwar Ibrahim through the courts.
Anwar’s lawyer S.N. Nair said the Registrar of the Federal Court–the highest judicial authority–is trying to force his firm under impossible circumstances to go ahead with the hearing of an appeal on Jan 6.
“The procedure adopted in relation to the matter is certainly unprecedented and does not, and cannot, serve the end of justice,” said Nair in a statement .
The statement from S.N.Nair and Partners reads:
“In relation to the section 51A Criminal Procedure Code documents, the Court of Appeal allowed the appeal of the Public Prosecutor on 6.11.2009 following which, on 17.11.2009, Datuk Seri Anwar Ibrahim appealed to the Federal Court against that decision.
“By fax transmission dated 29.12.2009, my firm was informed by the Registry of the Federal Court that the Federal Court had fixed the date of hearing of the appeal on 6.1.2010.
“In the same letter of notification, my firm was also asked to file the Petition of Appeal on an urgent basis.
“ My firm was taken aback by this development because the Record of Appeal had yet to be served on us as at the date of notification of the hearing.
“On 30.12.2009, my firm received a letter dated 23.12.2009 through Poslaju, serving on my firm the Record of Appeal and the Additional Record of Appeal. By Rule 95(1) of the Rules of the Federal Court 1995, my firm is required to file a Petition of Appeal within a period of ten days after service of the Record of Appeal.
“ Clearly, in the circumstances, the Petition of Appeal is required to be filed by 9.1.2010.
“The 9.1.2010, which being a Saturday and therefore a holiday, with Sunday being an intervening holiday, my firm is required to file the Petition of Appeal by 11.1.2010.
“It is impossible under the circumstances for the hearing of the appeal to proceed on the 6.1.2010.
“In any event, Mr. S. N. Nair of our firm who is the solicitor in charge, left for India on 28.12.2009 and is only due to return in the late evening of 5.1.2010.
“The procedure adopted in relation to the matter herein is certainly unprecedented and does not, and cannot, serve the end of justice.”
Anwar has maintained that the allegation against him is politically motivated by the government of Prime Minister Najib Abdul Razak.
He was charged with sodomy in 1998 after being sacked by former Prime Minister Dr Mahathir Mohamad and forced to serve time in jail but the charges were ultimately quashed during the reign of Prime Minister Abdullah Badawi.
The latest move against to speedily put him on trial on Jan 25 is seen by his supporters as an attempt to remove him from the political scene.
Legal circles have been questioning the rejection of Anwar’s application to strike out the sodomy charges.
When fixing the dates for the hearing from Jan 25 to to Feb 25, judge Mohamad Zabidin Mohd Diah ruled that medical reports could not serve as the basis for the court to use its inherent powers to strike out the charge.
However, the court ruling was met with cynicism from opposition lawyers who dismissed the judgment as political in nature.
According to a Nut Graph report, the Court of Appeal’s interpretation of Section 51A of the Criminal Procedure Code (CPC), by which it made its judgment, is worrisome from a justice perspective.
The judgment nullifies the efforts of the parliamentary select committee which proposed the CPC amendments in 2006 requiring pre-trial disclosure by the prosecution to the defence.
The legislature’s intention was to “prevent trial by ambush” but the Court of Appeal’s judgment in Anwar’s sodomy case seems to overturn that principle.
But is Section 51A as clear cut as it was meant to be? And is splitting hairs over its meaning scuppering Anwar’s chances for a fair trial?
Section 51A was introduced to widen the scope of evidence that the defence could obtain from the prosecution. At first reading, it comes across as a clear obligation for the prosecution to make available to the defence evidence that it intends to use during trial.
Section 51A . Delivery of certain documents
1. The prosecution shall before the commencement of the trial deliver to the accused the following documents:
a. A copy of the information made under Section 107 relating to the commission of the offence to which the accused is charged, if any;
b. A copy of any document which would be tendered as part of the evidence for the prosecution; and
c. A written statement of facts favourable to the defence of the accused signed under the hand of the Public Prosecutor or any person conducting the prosecution.
The meanings of the words “shall” and “any document” are clear, a member of the Bar Council’s criminal law committee, Baljit Singh Sidhu, who is also the author of Criminal Litigation Process, has been quoted as saying.
“The intention of 51A is to put both parties in a trial on equal footing in the interest of justice. That was parliament’s intent. The word ’shall’ should be taken to mean ‘must.’
“If the court does not interpret ’shall’ as being mandatory, then there is no point to the amendment.”
Baljit is also Gerakan Federal Territory legal adviser.
“Any document” should also be taken to mean any type of evidence, Baljit adds. It is all the more important when it involves evidence like DNA, for which scientific expertise and time are required if defence lawyers are to analyse it.
However, the Court of Appeal in Anwar’s sodomy case decided there were “limits” as to the kind of evidence the prosecution could be asked to produce before a trial.
Hence, it overturned the High Court’s decision ordering the prosecution to hand over evidence, which included video footage, medical reports, doctors’ notes, and witness statements of alleged victim Mohd Saiful Bukhari Azlan and others.
The bench, in rejecting Anwar’s cross-appeal for DNA specimens held by the prosecution, also said that the evidence requested did not fall under the category of evidence in 51A.
“The amendment [to the CPC] is as good as non-existent,” Anwar’s lawyer Nair was quoted as saying.