PUTRAJAYA: The Federal Court has dismissed opposition Leader Datuk Seri Anwar Ibrahim’s third attempt to disqualify Tan Sri Muhammad Shafee Abdullah from leading the prosecution in his Sodomy II appeal. The five-man panel led by the Chief Justice Tun Arifin Zakaria ruled that the application lacked merit and that Anwar’s lawyers should have filed for a judicial review to question the Attorney-General’s (AG) decision to appoint Muhammad Shafee instead of filling for a notice of motion.
“On that ground alone, the application is dismissed,” said Arifin.
The Federal Court came to the decision after listening to the point of contestation that Anwar’s lawyers had filed for the court to declare Muhammad Shafee’s appointment “null and void”. A judicial review is needed to obtain the court’s permission to challenge the AG’s decision.
The third application was made on two grounds. First, that Muhammad Shafee is not a “fit and proper” person to lead a case of public importance as he had breached the publicity rule over a newspaper article and was fined RM5,000 by the Advocates and Solicitors Disciplinary Board. He is currently appealing the decision.
Second, that there was a conflict of interest because Muhammad Shafee as the chairman of the Suhakam inquiry in 2009 into the arrest of five lawyers of the Kuala Lumpur Legal Aid Centre (LAC) had been part of the three-member panel that found that former DSP Jude Blacious Pereira was “not telling the truth” and concluded that Pereira had acted in bad faith in connection with the arrest. Pereira is a “key witness” in the prosecution’s case as he was also the Investigation Officer (IO) in Anwar’s Sodomy II case.
Addressing these grounds, the panel ruled that Muhammad Shafee was merely fined and not “struck off” the roll, which would have barred him from practising. “The AG has deemed him fit and proper to lead the prosecution [and we find] no reason to interfere with this discretion,” said Arifin.
On the conflict of interest surrounding Pereira, the panel ruled that there was “not sufficient ground to disqualify” Muhammad Shafee. Arifin did not elaborate. The panel concluded in the hearing that the appointment of Muhammad Shafee will not “compromise the integrity” of the trial proper.
The other judges on the panel were Justices Tan Sri Raus Sharif, Tan Sri Abdul Hamid Embong, Tan Sri Suriyadi Halim Omar and Tan Sri Ahmad Maarof.
Muhammad Shafee was appointed by the AG under Section 376 (3) of the CPC and Article 145 (3) of the Federal Constitution to conduct the prosecution at the Court of Appeal.
During submissions, Arifin questioned Anwar’s lead counsel Tommy Thomas on why Muhammad Shafee could not practise in this specific case due to the fine imposed by the board.
“Based on your argument, the moment he is found guilty, [he] can’t appear [in cases],” said Arifin.
Thomas countered that the question was whether Muhammad Shafee has a “sterling disciplinary record” to lead this case so justice is seen to be carried out. Arifin then said that as Muhammad Shafee is still appealing the matter, the appointment is “really up to the AG’s discretion”.
“Who are we to question the AG’s discretion? We have to look at the offence. I’m sure the AG would have looked into the material [facts]. That’s not the issue before us,” said Arifin.
He added that Anwar’s counsel was “speculating” that Muhammad Shafee’s appointment would impact the integrity of the case.
Muhammad Shafee, when submitting, said in the case of Jude Pereira, he would be more careful when handling the witness due to his previous experience with the former police officer. He said that the Suhakam matter and Anwar’s Sodomy II trial are unrelated.
He said that Anwar’s side failed to show how this resulted in the judicial process being compromised. As for the fine by the disciplinary board, he argued that it was a common occurrence.
R Sivarasa, who also represented Anwar yesterday, said the “null and void” contestation is a matter of interpretation as the team’s intention was to “disqualify” Muhammad Shafee.
Anwar said that there will not be any further applications until the trial proper, which is slated for Oct 28 and 29. “This decision was expected but we have to move on to prepare for the [main] appeal. The legal team is competent enough.”
He said his lead counsel for the appeal proper, Datuk Sulaiman Abdullah, who has taken over the matter after Karpal Singh’s death, is still unwell but ready for the trial. Sulaiman had been on extended sick leave which ended recently.
This article first appeared in The Edge Financial Daily, on October 15, 2014.