Federal Court dismisses Anwar's bid for judge to recuse himself

PUTRAJAYA - The Federal Court on Wednesday dismissed Datuk Seri Anwar Ibrahim's final bid for High Court Justice Mohd Zabidin Mohd Diah to recuse himself from hearing his ongoing sodomy trial.

Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinudin, presiding a three-man panel, said the apex court agreed with the appellate court's ruling that Anwar's appeal was non-appealable because it was an interlocutory matter made in the course of a trial which did not finally dispose of his rights.

He said Justice Mohd Zabidin's ruling did not fall within the term "decision" as defined in Section 3 of the Courts of Judicature Act 1964 (COJA), and was therefore not appealable.

The panel, also comprising Federal Court judges Tan Sri James Foong Cheng Yuen and Tan Sri Abdull Hamid Embong, rejected Anwar's application to revisit a Federal Court judgment on the interpretation of the word "decision" defined in Section 3.

The court also did not accept the argument of Anwar's lawyer Karpal Singh that the appellate court judge Datuk Abdul Malik Ishak did not have the jurisdiction to include the merits of the appeal in his written judgment concerning this matter.

Karpal Singh argued that Justice Abdul Malik should have refrained from including the merits of the appeal in his written judgment because he and two other appellate court judges had dismissed Anwar's appeal based on the prosecution's preliminary objection that the appellate court did not have the jurisdiction to hear the appeal since the matter was not appealable.

He added that Anwar's lawyers and the prosecution did not argue on the merits of the appeal.

In the unanimous decision, Justice Zulkefli agreed with deputy public prosecutor Datuk Nordin Hassan that the merits of the case were discussed in the judgment purely for the purpose of completeness.

The Federal Court panel, however, ruled that four paragraphs in Justice Abdul Malik's judgment were an offensive and disparaging statement made against Anwar and his lawyers and allowed his (Anwar's) application to expunge the paragraphs.

Anwar was appealing against Justice Mohd Zabidin's decision on July 6 this year to reject his third bid to disqualify the judge from hearing his (Anwar's) trial.

In his application, Anwar asked for another judge to preside over his trial, claiming that Justice Mohd Zabidin had pre-judged the case at the end of the prosecution case in accepting the testimony of prosecution witness Mohd Saiful Bukhari Azlan as truthful evidence.

Anwar, 64, is on trial for allegedly performing carnal intercourse against the order of nature on Mohd Saiful at Desa Damansara Condominium in Bukit Damansara between 3.10 pm and 4.30 pm on June 26, 2008. He faces a jail term of up to 20 years and whipping if convicted.

Earlier, in the proceeding, Karpal Singh submitted that Justice Abdul Malik should have not gone into the merits of the appeal because after an appeal was dismissed, it should normally be the end of the matter.

He said that by going into the merits, it amounted to judicial assassination of the worst kind and that to make the matter worse, Anwar and his lawyers were not given an opportunity to defend themselves.

Nordin argued that the merits of the appeal were contained in the written submissions of both the prosecution and defence and it was not wrong for the appellate court to go into the merits in its judgment.

- The Star