Kuala Lumpur – The Federal Court today ruled that senior lawyer Tan Sri Muhammad Shafee Abdullah is a proper and fit person to lead the prosecution team in the final appeal of Datuk Seri Anwar Ibrahim against his five-year jail sentence for sodomy at the Apex Court on Oct 28.
A five-man bench headed by Chief Justice Tun Arifin Zakaria in a unanimous decision said a proper mode for Anwar to challenge Muhammad Shafee’s appointment should be way of judicial review and not by notice of motion.
Muhammad Shafee was appointed by Attorney-General Tan Sri Abdul Gani Patail by fiat (authorisation) under Section 376 (3) of the Criminal Procedure Code (CPC) and Article 145 (3) of the Federal Constitution to conduct the appeal at the Court of Appeal.
Arifin said the panel noted the argument put forward by Anwar’s counsel Tommy Thomas that the lawyer (Muhammad Shafee) had acted as Suhakam chairman during a hearing which found the star witness of the sodomy case, Supt (Rtd) Jude Blacious Pereira, to be an untruthful witness, but the panel found there was no nexus between both cases.
On the issue of Muhammad Shafee having been fined RM5,000 by the Advocates and Solicitors Disciplinary Board for violating the Legal Profession Act, he said although Muhammad Shafee was fined, he was not struck out from the lawyers roll.
“The grounds relied on by the applicant were not sufficient grounds to disqualify Shafee as deputy public prosecutor,” stressed Arifin.
In conclusion, he said, the panel viewed that the appointment had not in any way compromised the integrity of the main appeal (on Anwar’s conviction).
The other panel members were Appeals Court president Tan Sri Md Raus Sharif, Tan Sri Suriyadi Halim Omar, Tan Sri Abdul Hamid Embong and Tan Sri Ahmad Maarop.
The decision today puts an end to Anwar’s third attempt to disqualify Muhammad Shafee to lead the prosecution and the Federal Court is set to hear the final hearing of the matter on Oct 28 and 29.
Anwar had first challenged the legality of Muhammad Shafee’s appointment under the Criminal Procedure Code but this was dismissed by the Court of Appeal on Sept 17 last year.
His second application to disqualify Muhammad Shafee, based on a statutory declaration by former Kuala Lumpur Criminal Investigation Department chief Datuk Mat Zain Ibrahim, was also dismissed by the Court of Appeal, on Dec 20 last year.
In a related development, Anwar’s co-counsel R. Sivarasa told reporters that lawyer Datuk Sulaiman Abdullah would be leading the defence team.
The late Karpal Singh was Anwar’s lead counsel during the trial at the High Court and at the Court of Appeal.
On Jan 9, 2012, the High Court in Kuala Lumpur acquitted and discharged Anwar on a charge of sodomising his former aide Mohd Saiful, 26, at a Desa Damansara condominium unit in Bukit Damansara between 3.10pm and 4.30pm on June 26, 2008.
However, on March 7 this year, the Court of Appeal reverted the decision by convicting him with the offence and sentenced him to five years’ jail.