Shafee was a potential witness, how can he lead Sodomy II prosecution - Anwar's lawyers

Datuk Seri Muhammad Shafee Abdullah cannot appear as deputy public prosecutor in the sodomy appeal of Datuk Seri Anwar Ibrahim as the senior lawyer was a potential prosecution witness.

This is Anwar's contention as he mounts a challenge to have the lawyer removed as the lead prosecutor in the sodomy case which will be heard by the Court of Appeal next month.

"Although Shafee did not give evidence, he was offered to the defence as witness at the close of prosecution's case.

"Shafee was part of the prosecution case to unfold their story. Possibly, he would have also given a statement to the police," Anwar said in his affidavit which was sighted by The Malaysian Insider.

Anwar said Shafee need not be employed as DPP because the Attorney-General's Chambers has enough competent legal officers to conduct the appeal. Furthermore, he pointed out that the expenses incurred to hire Shafee will be borne by taxpayers.

Shafee had told reporters on July 22 that his appointment was under Section 376 (3) and Section 379 of the Criminal Procedure Code and that he would be paid a minimal sum due to an existing contract between him and the government.

Anwar said Section 376 (3) only talked about the appointment of a fit and proper person while 379 touched on employment.

He said Shafee could not be appointed under both sections as they had different intentions.

The opposition leader pointed out that under Section 376 (3) a lawyer can be appointed DPP but without salary, while under Section 379 an advocate can be selected and the salary paid from public funds.

The hearing of the appeal is fixed for two days from Sept 17.

Shafee had said that his appointment as DPP should not be turned into a political issue as he was not a politician nor a member of any political party. He said he was picked because of his capabilities.

Attorney-General Tan Sri Abdul Gani Patail has defended his move to appoint Shafee.

Gani said giving a licence to a private lawyer to represent Putrajaya was not something new, drawing on the example of lawyer Datuk Tan Hock Chuan who was the conducting officer in the Teoh Beng Hock inquest.

He also pointed out that the lead prosecutor in Anwar's trial, Datuk Mohd Yusof Zainal Abiden, after taking early retirement, eventually represented the opposition.

However, former AG Tan Sri Abu Talib Othman said picking Shafee to prosecute the appeal was a dangerous precedent which gave the impression that officers from the AG's Chambers were incompetent.

Abu Talib, who had been AG for 13 years from 1980, said there were many experienced officers to conduct the appeal which he considered a "straight forward case".

He said conducting the appeal was easy because Anwar was only acquitted after his defence was called.

Abu Talib said the authorities would have grapple with the issue of perception in appointing Shafee.

Anwar was freed in January last year of allegedly sodomising his former political aide, Mohd Saiful Bukhari Azlan, at Desa Damansara condominium on June 26, 2008.

Trial judge Datuk Mohd Zabidin Mohd Diah said it was unsafe to convict Anwar as the court could not ascertain the integrity of samples because the investigating officer, DSP Jude Blacious Pereira, had opened the plastic bag containing the samples.

Twenty-seven prosecution witnesses and seven defence witnesses testified at the trial which went on for more than three years.

Anwar himself gave an unsworn statement from the dock.

- themalaysianinsider.com