Anwar fails to disqualify judge again

Justice Mohamad Zabidin Mohd Diah rejects the defence's application to disqualify him from hearing the case on the grounds that he had pre-judged the trial.

KUALA LUMPUR: Anwar Ibrahim failed again to disqaulify Kuala Lumpur High Court judge Mohamad Zabidin Mohd Diah from hearing the case and for the trial to start afresh.

Justice Mohamad Zabidin Mohd Diah today rejected the defence’s application to disqualify him from hearing the case on the grounds that he had pre-judged the trial.

“I find the application by the defence to be without any merit and therefore I hereby reject the application,” ruled the judge.

The judge however allowed for a stay of proceedings pending appeal to the Court of Appeal. The trial is set to reconvene on the July 13.

This is the third time Anwar has attempted to have Judge Mohamad Zabidin recused. His earlier attempts to have the judge recused – over the judge’s failure to take action against Utusan Malaysia and his threat to cite Karpal Singh for contempt – ended in failure.

Anwar’s defence, led by Karpal Singh, said in his submission that court held complainant Saiful Bukhari’s testimony as if it were fact while delivering a ruling to call Anwar to enter his defence, and as a result has pre-judged Anwar.

Karpal said that the maximum evaluation at the end of the prosecution case was the establishment of prima facie, not beyond reasonable doubt.

“Your lordship has shut out the defence by deciding PW1 (Saiful) is a witness of truth and gone beyond what is required by law,” said Karpal.

In his ruling on May 16, Justice Mohamad Zabidin said he found Mohd Saiful’s evidence “reliable, and if accepted would establish all the facts required to prove the charge against the accused”.

In ruling so, Anwar claimed, the judge had made a “conclusive finding” by relying solely on Saiful’s testimony.

The prosecution, led by Solicitor General II Yusof Zainal Abiden, claimed that the judge at no time said that Saiful’s evidence was the complete truth.

“What he said was, a prima facie case has been made against the defence, that is all,” he said.
Yusof explained that a prima facie case is where evidence which is beyond reasonable doubt has been adduced while the defence is given a chance to create doubt in the prosecution’s case.

“The court will rely on the same evidence to prove the case beyond reasonable doubt. You must have ‘beyond reasonable doubt’ to call for a prima facie case,” said Yusof, pointing out that Judge Mohamad Zabidin had not said that the guilt of the defendant was beyond reasonable doubt but rather the evidence had been.

Where is Najib, Rosmah?

Speaking to reporters later, Anwar stood firm with his contention that the judge had pre-judged the case.
He also said that the defence faced another problem in the delay by the prosecution in not producing witnesses.

“We’ve not been able to interview the list of witnesses. They want us to defend ourselves. Defend from what when a decision has already been made?” he asked.

Twenty-five witnesses were offered to the defence to be produced in court, but so far only five have come forward.

“It is not this application which is delaying the trial,” said Karpal Singh, who described the five witnesses who had been interviewed as “immaterial”.

“The prosecution has not produced the PM (Najib Tun Razak) and his wife (Rosmah Mansor),” he said.
This is the second time the PKR de facto leader has been charged with sodomy, the first being in 1998 alongside charges of corruption.

The complainant accused Anwar of sodomising him at a condominium in Bukit Damansara on 26 June 2008. If convicted, Anwar can be sentenced to a maximum of 20 years jail.