Fed Court dismisses Anwar's third bid to disqualify Shafee, Sodomy II appeal to proceed

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PUTRAJAYA (Oct 14): The Federal Court has dismissed Datuk Seri Anwar Ibrahim's third attempt to disqualify Tan Sri Muhammad Shafee Abdullah from leading the prosecution in the opposition leader's Sodomy II appeal.

The five-member panel led by 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 decision to appoint Muhammad Shafee instead of filling for a notice of motion.

"On that ground alone, the application is dismissed," said Arifin.

The panel came to the decision after listening to the point of contestation that Anwar's lawyers had filed for the Federal Court to declare Muhammad Shafee's appointment as "null and void". In order to declare the AG's decision as null and void, by law, a judicial review would have to be filed.

This third application was made based on two grounds.

First, that Muhammad Shafee was not a "fit and proper" person to lead a case of public importance as he had breached the legal profession’s publicity rule over a newspaper article and fined RM5000 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 over the arrest of five lawyers from the Kuala Lumpur Legal Aid Centre, had  found that former DSP Jude Pereira was "not telling the truth" and concluded that the latter had acted in bad faith with regard of the arrest.

Pereira is a "key witness" in the prosecution's case as he was also the Investigation Officer in Anwar's Sodomy II case.  

Addressing these grounds, the Federal Court ruled that Muhammad Shafee was merely fined and not "struck off" the roll and subsequently barring him from practicing.

"The AG has deemed him fit and proper to lead the prosecution (and we find) no reason to interfere with this discretion," said Ariffin.

On the conflict of interest surrounding Pereira, the panel ruled that there was "not sufficient ground to disqualify" Muhammad Shafee. Ariffin did not elaborate on this.  

The panel concluded that the appointment of Muhammad Shafee would 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 attorney-general as authorised under Section 376 (3) of the CPC and Article 145 (3) of the Federal Constitution to conduct the appeal at the Court of Appeal.

Earlier during submissions, Arifin had questioned Anwar's lead counsel lawyer 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 had a "sterling disciplinary record" to lead this case so justice was seen to be carried out.

Arifin then said that as Muhammad Shafee was still appealing the matter, the appointment was "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 that in the case of Jude Pereira, he would actually be more careful when handling the witness due to his previous experience with the former police officer. He also insisted that both the Suhakam matter and Anwar's Sodomy II trial were unrelated.

He said that Anwar's side also 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.

"If (the) Bar goes (after those on the breach of the) publicity rule, then half the Bar would be fined as well," he said.

Speaking to reporters later, R Sivarasa who also represented Anwar today said that the "null and void" contestation was a matter of interpretation as the team's intention was to "disqualify" Muhammad Shafee.

Anwar said that there will not be any further applications to delay 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 told reporters after the decision

He added that his lead counsel for the appeal proper, Datuk Sulaiman Abdullah, who has taken over the matter after lawyer Karpal Singh's death was still unwell but ready for the trial.

"We will not appeal further on grounds of his health as the courts have given us enough leeway," the opposition leader said. Sulaiman has been on long sick-leave until recently.