Anwar's Sodomy II challenge over ‘Shafee allegation’ thrown out

The Kuala Lumpur High Court has struck out Anwar Ibrahim's originating summons to set aside his Sodomy II conviction based on Sarawak Report's allegation that Prime Minister Najib Abdul Razak paid lawyer Muhammad Shafee Abdullah RM9.5 million and that there was no fair trial in the case.

The decision was made by Justice Azizah Nawawi in chambers. She also ordered the former opposition leader to pay RM10,000 in costs to the government.

Justice Azizah said that as an accused person, Anwar was constitutionally entitled to a fair trial at all stages of the judicial process and this included being prosecuted by a counsel who is independent and uninfluenced by a third party through financial inducement.

Hence, she said Anwar's complaint on the issue of a fair trial was premised on the allegation that the prosecutor (Shafee) conducting the appeals before the Court of Appeal and Federal Court was paid RM9.5 million by the prime minister.

“The crucial issue here is that Anwar is making a bare allegation on the payment. He made reference to two payments on Sept 11, 2013 and Feb 17, 2014. But there is nothing to support this allegation in his affidavit.

“In his affidavit, Anwar simply says the information is in the public domain,” she noted, adding that Anwar also filed a discovery application to inspect documents and for Najib and Shafee to produce statements of accounts, in particular, the entries.

Justice Azzizah said under Order 41 Rule 5(1) of the Rules of Court 2012, an affidavit might contain only such facts as the deponent (applicant) is able of his own knowledge to prove and under Rule 5(2), an affidavit used in an interlocutory proceeding might contain information of belief with the sources and grounds thereof.

“In the present case, Anwar's supporting affidavit has not complied with Order 41 Rule 5(1). The plaintiff has not deposed the basis of his allegation of the RM9.5 million payment and has not given any supporting documents to support his bare allegation.

“The foundation of the originating summons is the alleged payment by Najib to the prosecutor and this is not supported at all. Therefore, on this issue alone, I find the plaintiff's application is not supported by any evidence and the application is groundless and must be dismissed,” she added.

High Court has no jurisdiction

The judge also noted that the net effect of Anwar's application was to set aside the Court of Appeal and Federal Court's judgments and the High Court simply has no jurisdiction to do so.

“At the same time, as Anwar applied to challenge Shafee's appointment before the Federal Court and vide an application for review under Rule 137 (of the Federal Court rules) and the same was dismissed by the Federal Court, this similar application is an abuse of the court process,” she said.

Anwar had filed an application naming the government as the defendant to set aside his Sodomy II conviction in light of Sarawak Report's allegation that Najib paid RM9.5 million to Shafee, claiming the act violated his right with regard to Article 5(1) of the Federal Constitution regarding liberty of a person to have a fair trial.

He also filed the discovery application to have Najib and Shafee produce their bank accounts to show the purported payment made on those dates.

Najib and Shafee had filed separate applications to strike out Anwar's discovery application. Following today's decision, Najib and Shafee's applications were also allowed.

Senior federal counsel Nadia Hanim Mohd Tajudin appeared for the government.

Expressing disappointment with the outcome, Anwar's lawyers N Surendran and Latheefa Koya said their client has instructed them to appeal the decision to the Court of Appeal and Federal Court.

Following the Court of Appeal overturning his acquittal and the Federal Court upheld his conviction in February 2015, the former opposition leader was sentenced to five years in prison.- Mkini