Sodomy II: Court of Appeal hears third application to disqualify Shafee


( – The Court of Appeal heard today Opposition Leader Datuk Seri Anwar Ibrahim’s third application to disqualify Tan Sri Muhammad Shafee Abdullah who has been appointed by the AG’s Chambers as the Deputy Public Prosecutor (DPP) to appeal Anwar’s acquittal of the Sodomy II charge.

Anwar’s counsel lead by senior lawyer Karpal Singh today submitted that Shafee should be disqualified on two grounds.

First, that Shafee was not a “fit and proper” person to be appointed as the DPP following the Kuala Lumpur High Court’s decision last month to uphold the finding of the Advocates and Solicitors Disciplinary Board that he had breached the publicity rule over a newspaper article.

The second ground for objection revolved around Shafee’s role as the chairman of the Suhakam inquiry in 2009 over the arrest of five lawyers from the Kuala Lumpur Legal Aid Centre (LAC) where he, part of the three-person panel found that former DSP Judy Blacious Pereira (Jude Pereira) was “not telling the truth” and concluded that the latter had acted in bad faith with regard of the arrest.

Karpal pointed out that this is problematic as Pereira was the investigation officer in the Soddomy II case and was one of the main witnesses in the 2010 Sodomy II trial. Anwar’s counsel said they were also trying to recall Pereira to testify at the appeal of the Sodomy II trial.

Last month the Appeal’s Court had rejected their application. The respondents have appealed the matter and Federal Court is set to hear the matter tomorrow.

Arguing on the first ground of objection, Karpal submitted that only “personalities of the highest standing (are selected to be DPP) not those with tarnished reputation”.

“There must be public confidence (in the DPP) and public funds must not be misused…There was also no reason given for his appointment despite this defect in his character,” he said.

Shafee was fined RM5000 under the Legal Profession Act 1976 for his offence. The nature of the offence was that a journalist had written that Shafee was a top and prominent lawyer.

Karpal maintained that this was a serious offence which tainted Shafee’s reputation.

On the second ground of objection, Karpal said that it was “clear cut” that Shafee would be required to defend the very witness (Pereira) who he previously found to be an “untruthful” witness.

Shafee: The applications against me are vexatious and a waste of court’s time

Shafee who submitted today retaliated that on the first ground, the matter was still under appeal and that the offence was not severe as he was still in the Bar’s roll.

“I still remain on the roll of the Bar as a fit and proper person. If the Bar still finds me fits and proper than I don’t think Karpal can say otherwise. In fact they have issued a (practising) certificate for 2004 which shows that I am fit and proper and this should speak volumes,” he argued.

He added that the on-going appeal was not relevant to the Sodomy II case.

Shafee also took a stab at Karpal saying that if this was the best arguments to dismiss him, then the DPP would still be the best person to lead the team as the disqualification was merely based on a journalist calling him a prominent lawyer and not a more severe offence.

He went on to take another jab at Karpal over the latter’s recent conviction under the sedition charge. Shafee argued that by degree of severity of the offence, Karpal’s conviction was far more serious as he was convicted under sedition.

“This is a case of the pot calling the kettle black…They have scrapped the bottom of the barrel and this is just what they can come up with,” he said bitingly.

On the second ground concerning Pereira, Shafee went on the record to say that he did indeed find Shafee to be untruthful. However, he added that he only found the latter to be untruthful in that one case.

“If he lied in one or two circumstances in the same case, that doesn’t make him a (universal) liar,” he asked.

He added that Karpal’s team had not quoted any law to say that if he found someone guilty in one instance, he could not defend them in another instance.

Shafee also requested for cost to be paid by Anwar, which is highly unlikely in a criminal case such as this one. He argued that if the judges did not “do anything drastic” there would be further applications to disqualify Shafee as the DPP.

‘This is the third application. Two applications have already gone to Federal Court. It is vexatious and a waste of court’s time…that’s the worse misconduct any solicitor can undertake,” he said.

Shafee said that he did not submit a reply to the appellant’s affidavit and they the latter will only further drag on the court proceeding by requesting time to further dispute Shafee’s written reply.

He added that throughout the length of the Sodomy II trial, the defendants had filed 69 applications at different junctures to “stall the trial”.

Shafee added: “The appellants are biting the bullet”.

Fiery Karpal retaliates, says severity of Anwar’s charge was reason enough to exhaust all avenues of justice.

Shafee’s submission brought about a biting retaliation from Karpal who opened his remarks with, “We are not biting the bullet but the bullet has found its mark”.

He sternly pointed out that Shafee need not be concerned with the former’s conviction and that the nature of the conviction was not similar.

“I was convicted under the Sedition Act 1948 which has outlived its purpose.

“My learned friend does not have to worry about me. My statements were something in the public interest unlike seeking publicity,” he said.

He went on to stress: “Anwar has every right, with what is at stake to exhaust all legal avenues open to him and that is what we have done”.

“Our application is found upon something of importance. Why was there a need to hire outside the AG’s Chambers in the first place. Is there a hidden hand which directed his (Shafee’s) appointment,” he said.

“My learned friend is asking for cost in a process he necessitated himself. Why must we the taxpayers, including you the judges, pay for someone who is not worth the appointment,” he said resting his case.

The three-person panel consisting of Appeal’s court judges, Datuk Balia Yusof Haji Wahi, Datuk Aziah Ali and Datuk Mohd Zawawi Salleh, will deliver their decision later today.