KUALA LUMPUR, September 3 - Datuk Seri Anwar Ibrahim's application to disqualify the entire Sodomy II trial prosecution team began today with the opposition leader's lawyers presenting evidence pointing to the possibility of bias conduct by all seven prosecutors.
The government's team, led by senior federal counsel See Mee Chun, in their submission however, cited the application as an abuse of court process by Anwar and argued that the evidence showed by Anwar's lawyers were flimsy in proving their claims.
On Aug 11, the opposition leader filed an application to disqualify the entire prosecution team in his sodomy case, citing "a real danger of bias" as one of the grounds.
He named Solicitor-General I Datuk Idrus Harun, Solicitor-General II Datuk Mohamed Yusof Zainal Abiden, deputy public prosecutors Datuk Nordin Hassan, Mohamad Hanafiah Zakaria, Wong Chiang Kiat, Shamsul Sulaiman and Noorin Badaruddin, the Public Prosecutor and the Government, as respondents.
A key piece of evidence used by PKR vice-president R Sivarasa, who is Anwar's lead counsel, to back their allegations was a letter of demand to the Solicitor-General made by Datuk Mat Zain Ibrahim, the police officer who investigated Anwar's "black-eye" assault in 1998.
The letter of demand, made public recently, accused Attorney General Tan Sri Gani Pattail, who was the lead prosecutor in Anwar's first sodomy trial ten years ago, of fabricating Anwar's medical report.
Mat Zain had concluded that the fabrication allegedly done by Gani was an attempt to "invite the conclusion that the injury sustained by Anwar was self-inflicted."
Anwar, who was just sacked as the deputy prime minister at the time, had been assaulted by then Inspector General of Police Tan Sri Rahim Noor while under police detention.
All the respondents were senior officers in the AG's office at the time and Sivarasa alleged that Mat Zain's letter showed that all of the respondents were well aware of the fabrication of evidence made by Gani at the time but did nothing.
"The behavior of the respondents can reasonably taken to be aiding and abetting the covering-up of of the crime of evidence fabrication of the AG," said Sivarasa in his submission.
One of the respondents have also been accused of willfully suppressing evidence in Anwar's sodomy II trial when he refused to disclose several documentary evidence, including the medical reports made by Dr Osman Abdul Hamid of Pusrawi which indicated that complainant Saiful Bukhari Azlan, 24, had not been sodomised.
Under the Criminal Procedure Code, the prosecution in possession of evidence favourable to the defence must disclose them as a way to ensure a fair trial. If there is no such evidence, a certificate of declaration must be signed by the prosecution.
Sivarasa, however, alleged the respondents have deliberately breached the law by declaring that there were no such evidence despite possessing the medical reports, evidence clearly favourable to the defence.
He further alleged that they had only managed to obtain the evidence by applying for disclosure through court. All request made by Anwar directly to the prosecution were ignored.
Sivarasa's arguments, however, were dismissed by See, who argued that the leave application is non-justiciable and that Anwar could apply for the disqualification of the prosecution during his trial and not necessarily through a judicial review.
She also argued that the leave application "would create havoc" in Anwar's trial as it has to undergo more postponement to review the suitability of the prosecutors.
After hearing submissions from lawyers representing both sides, Justice Datuk Alizatul Khair Osman Khairuddin fixed Sept 15 for a decision on Anwar's application.
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