Anwar’s appeal against Shafee rejected


(NST) – The Federal Court here today struck out Datuk Seri Anwar Ibrahim’s appeal to disqualify senior lawyer Tan Sri Muhammad Shafee Abdullah from leading the prosecution team to overturn his acquittal on a sodomy charge.

This is an appeal brought by Anwar against the Court of Appeal’s dismissal of his second application to disqualify Shafee.

In a unanimous decision, a five-man bench led by judge Tan Sri Zulkefli Ahmad Makinudin, ruled that there was no prima facie case against Shafee.

“We find that the statutory declaration (SD) by one (former Kuala Lumpur Criminal Investigation Department chief Datuk) Mat Zain Ibrahim is an out of court statement and we cannot accept the contents of an out of court statement.

“Without the SD, the rest of the allegations made by the applicant are hotly disputed.”

As such, Zulkefli added that there were no good materials to establish a prima facie case against Shafee.

The SD was used as grounds to disqualify Shafee during the appeal at the Court of Appeal.

It was reported that the SD, among others, had disclosed that Shafee intentionally hid evidence pertaining to the Pulau Batu Puteh territorial dispute between Singapore and Malaysia.

It also accuses Attorney- General Tan Sri Abdul Gani Patail and former inspector-general of police Tan Sri Musa Hassan of fabricating evidence in the infamous “black eye” incident in 1998.

Also in the panel were Tan Sri Richard Malanjum, Tan Sri Suriyadi Halim Omar, Datin Paduka Zaleha Zahari and Datuk Jeffrey Tan Kok Wha.

During submissions earlier, Anwar’s lead counsel Tommy Thomas said etiquette rules under the Legal Profession (Practice and Etiquette) Rules 1978 were ultimately the basis to challenge Shafee’s appointment in this appeal.

“Shafee’s appointment is fairly tainted. He was the legal adviser for then Prime Minister Tun Dr Mahathir Mohamad and was the deputy public prosecutor during Anwar’s first sodomy case.

“This amounts to conflict of interest.”

He said Shafee was also the legal adviser for Umno and Barisan Nasional.

Thomas added such conflict will undermine Shafee’s judgment.

On the other hand, Shafee refuted claims on conflict of interest.

He heavily stressed that he was only acting in his capacity as a professional lawyer.

“I have argued (cases) for both sides. I am not even an Umno member.”

At this point, Malanjum asked if Shafee then considered himself a mercenary.

Shafee then reiterated that he was only acting as a professional counsel.

If Anwar was unsatisfied of him being appointed as the lead prosecutor, Shafee added that he then should lodge an official complaint with the Attorney-General’s Chambers.

“They (Anwar) are actually barking up the wrong tree.”

Anwar’s first attempt to disqualify Shafee was on Sept 17, last year, however it was dismissed.

On Nov 21 last year, he appealed the decision at the Federal Court but it was not ruled in his favour and Shafee’s appointment was deemed valid.

The appellant later made a second application to disqualify Shafee at the Court of Appeal and the matter was once again struck out on Dec 20, last year.

Shafee was appointed to appear as public prosecutor to lead the prosecution in its appeal against Anwar’s acquittal was by way of a ‘fiat’ under Section 376 (3) and 379 of the Criminal Procedure Code and Article 145 of the Federal Constitution.

On Jan 9, last year, the Kuala Lumpur High Court acquitted and discharged Anwar of a charge of sodomising his former aide, Mohd Saiful Bukhari Azlan, 26, at Desa Damansara condominium unit in Bukit Damansara here, between 3.10pm and 4.30pm on June 26, 2008.

The government then appealed against the acquittal.

The main appeal tomorrow will see former investigating officer (IO) in Anwar’s second sodomy case and ex-deputy superintendent (DSP) Jude Blacious Pereira recalled as a witness by Anwar’s lead counsel Karpal Singh.