Thursday 28 Mar 2024
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PUTRAJAYA (Nov 5): The Court of Appeal on Friday (Nov 5) set Feb 23, 2022 for its decision on whether to allow opposition leader Datuk Seri Anwar Ibrahim’s lawsuit against the government over his second sodomy conviction in 2015.

Judge Datuk Lee Swee Seng, who chaired the three-judge panel on Friday morning, heard arguments from Anwar’s lawyer Datuk Seri Gopal Sri Ram, senior federal counsel with the Attorney-General's Chambers (AGC) Suzana Atan, and Harvinderjit Singh, who represented Tan Sri Muhammad Shafee Abdullah, who is applying to be an intervenor in the case.

Shafee is applying to intervene and strike out an affidavit filed by an officer of the AGC which affirmed that the lawyer received RM9.5 million from former premier Datuk Seri Najib Razak to lead the prosecution team in Anwar’s subsequent sodomy appeals after the High Court acquitted him in 2012.

The prosecution in March 7, 2014, led by Shafee, succeeded in their appeal to the Court of Appeal to reverse Anwar’s acquittal. The Port Dickson Member of Parliament was found guilty and sentenced to five years in prison. He also failed in his appeal to the Federal Court and was sent to jail.

When Pakatan Harapan won the general election in 2018, however, Anwar was given a full pardon by the Yang di-Pertuan Agong on May 16, 2018.

Sri Ram told the judges via Zoom proceedings on Friday that his client (Anwar) wants to show that he did not receive a fair trial when the High Court in 2017 struck out his originating summons to challenge the Sodomy II conviction.

“It’s an absolute right and a constitutional right to a fair trial. What is a fair trial is what we are asking the court to determine,” the lawyer said.

He added that the High Court judge at that time refused to hear their discovery application involving the affidavit filed by the officer of the AGC, which affirmed that Shafee indeed received the RM9.5 million from Najib.

“The learned judge should’ve heard our discovery application (the affidavit) first. Instead, she accelerated the application to strike out the suit. In the event that the learned judge had the evidence before her, she may not have struck it out,” Sri Ram told the judges.

He answered in the affirmative when asked by the judges if he wants Anwar’s lawsuit against the government to be sent back to the High Court for a retrial.

The lawyer said that if the suit goes back to the High Court, they would attempt to cross-examine Shafee over the RM9.5 million payment the latter received from Najib according to the affidavit.

Suzana then argued that Anwar received a fair trial despite the payment to Shafee being improper, adding that the payment to Shafee did not affect the judgement in Anwar’s conviction because the conviction was based on evidence before the court.

“The appellant (Anwar) received a fair trial; the payment didn’t affect the decision by the court. The court did not know about the payment, and they made the decision based on evidence before them,” Suzana said, adding that the appellate court can decide on this matter.

The other judges on the panel were Datuk Abu Bakar Jais and Datuk Supang Liang.

Harvinderjit then argued that his client (Shafee) was not the first external counsel appointed by the government as there were many times external counsels were appointed by the government under a fiat.

“In this case, the government only paid a nominal sum of RM1,000 to Shafee for the purpose of acting as a prosecutor,” Harvinderjit added.

He said that the terms of Shafee’s appointment were between the latter and the AGC.

“They can come to whatever arrangement they want in terms of payment,” Harvinderjit added.

The lawyer argued that while the payment of RM9.5 million from Najib to Shafee itself was recorded, the purpose of the payment was not.

Harvinderjit also noted that his client only received the payment from Najib much later — after Shafee served as a prosecutor.

“As a lawyer, I would accept my payment in advance. That was quite simply not the case here,” Harvinderjit said.

He also referred to the “seminal” decisions of the Court of Appeal and the Federal Court in convicting Anwar, adding that allowing Anwar’s civil suit to nullify the decisions made by the appellate court and the apex court would create a “bad precedent”.

“The seminal decisions of the Court of Appeal and the Federal Court stand [in Anwar’s conviction]; nothing there says that they were influenced by the argument of counsel [Shafee] taken overzealously or otherwise,” Harvinderjit said.

After the hearing, the judges set Feb 23 as the date to deliver their decision.

In his appeal, Anwar is seeking a declaration that his conviction for Sodomy II was ultra vires to the Federal Constitution and thus should be declared null and void.

He also wants an order that the decision by the Federal Court in upholding the Court of Appeal's decision was ultra vires and, therefore, null and void.

Before the appeal was heard in mid-2018, an officer of the AGC affirmed in an affidavit that in its probe, it found that Shafee did accept the RM9.5 million from Najib.

Subsequently, Shafee was charged with money laundering and tax evasion charges in September 2018, of which he had claimed trial.

The trial for the lawyer's money laundering and tax evasion charges is still ongoing.

Edited ByLam Jian Wyn
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