Court of Appeal explains why Shafee can lead prosecution in Anwar’s sodomy trial

The Court of Appeal has explained why lawyer Tan Sri Muhammad Shafee Abdullah can lead the prosecution in its appeal against the acquittal of Datuk Seri Anwar Ibrahim on a sodomy charge.  

Court of Appeal judge Datuk Rohana Yusuf, in a 19-page judgment released last Friday, said the doctrine of desuetude did not apply to Section 379 of the Criminal Procedure Code and to the laws in Malaysia.

"Malaysian legislation is perpetual in duration. It continues in force until either it is repealed or it expires. For a legislation to lose its applicability, it must be specifically repealed by Parliament. It cannot be impliedly repealed simply by the flow of time or inactive use," she said.

Anwar's lead counsel Karpal Singh had argued that Muhammad Shafee's appointment was a nullity because Section 379, one of the sections under which he (Muhammad Shafee) was appointed, was no longer applicable as that section had long not been in use and, hence, it should be declared as obsolete under the doctrine of desuetude.

Justice Rohana said there had been no recognition of the principle where a statute may lose its force merely through disobedience and lack of enforcement over a long period without express or implied repeal or expiry.

She also said that the court was also not able to agree with the approach taken by Karpal Singh in his argument that an advocate can no longer appear on behalf of the public prosecutor in criminal appeals as a result of amendments made to Section 378 of the Criminal Procedure Code which precluded an advocate from appearing on behalf of the public prosecutor in criminal appeals.

The prosecution is appealing against the decision on January 9, 2012, of the High Court which had acquitted and discharged Anwar, 64, on a charge of sodomising his former aide, Mohd Saiful Bukhari Azlan, 26, at Desa Damansara condominium unit in Bukit Damansara between 3.10 pm and 4.30 pm on June 26, 2008.  

The Court of Appeal set December 11 and 12 for hearing of the prosecution's appeal.

Justice Rohana, in the judgment, also said that Muhammad Shafee was not a material witness to both the prosecution and defence in Anwar's sodomy II trial.

She said the fact that the trial was over and neither the prosecution nor the defence had adduced his (Muhammad Shafee's) evidence, would dispel any thought of him being a material witness.

"In the course of his oral submission, learned counsel (Karpal Singh) for Anwar suggested that the testimony of Muhammad Shafee would be relevant to the defence of conspiracy anchored by Anwar in his defence. 

"If he (Muhammad Shafee) had been a material witness to the defence, it is somewhat odd that the trial had gone pass without his evidence," said Justice Rohana.

On September 17, the Court of Appeal three-member panel comprising Federal Court judge Datuk Ramly Ali and Court of Appeal judges, Justice Rohana and Datuk Mohd Zawawi Salleh had unanimously dismissed Anwar's application to disqualify Muhammad Shafee from appearing as public prosecutor to lead the prosecution in its appeal against Anwar's acquittal on a sodomy charge.

Muhammad Shafee was appointed lead prosecutor by the Attorney-General by way of a "fiat" under Section 376(3) and Section 379 of the Criminal Procedure Code (CPC) and Article 145 of the Federal Constitution. 

"We do not see how he (Muhammad Shafee) would be relevant to the sodomy charge against the applicant (Anwar)," said Rohana in the judgment.

She said the fact that the prosecution had offered Muhammad Shafee as defence witness was because his (Muhammad Shafee's) statements were recorded under Section 112 of the Criminal Procedure Code but it did not ipso facto make him a material witness. 

Justice Rohana also said Muhammad Shafee’s role to prosecute in this appeal was nothing different to Karpal Singh’s role in acting for Anwar in the 2001 sodomy I trial, where Karpal Singh had disclosed in parliament that on October 22, 1997, the complainant and one of the witnesses had met him regarding Anwar over the case.

“In our view, Karpal Singh’s role then is not too dissimilar than the facts referred to in respect of this issue. We say this because despite him being a potential witness, Karpal Singh acted as Anwar’s counsel during the trial," she said. Anwar has filed an appeal to the Federal Court against the Court of Appeal's dismissal of his application to disqualify Muhammad Shafee from appearing as public prosecutor.