UPDATED
By Shazwan Mustafa Kamal
KUALA LUMPUR, Feb 9 – Datuk Seri Anwar Ibrahim’s sodomy trial has again been adjourned for another day as his lead counsel Karpal Singh wants to reply to the prosecution’s affidavit against disqualifying presiding High Court judge Datuk Mohd Zabidin Mohd Diah.
Karpal yesterday sought to disqualify the judge yesterday, citing dissatisfaction with the way the court has dealt with Utusan Malaysia’s coverage of the case against Anwar, who is accused of sodomising former aide Mohd Saiful Bukhari Azlan at the Desa Damansara Condominium on June 26, 2008. The opposition leader has denied the charge, the second he has faced in 12 years.
The judge adjourned the case to 9.30am tomorrow to allow Karpal to file his reply today to Solicitor-General 2 Datuk Yusof Zainal Abiden’s affidavit which was filed yesterday. Yusof’s reply was to Karpal’s original application.
It is understood that the crux of the prosecution’s affidavit was that there were “inaccuracies” in Karpal’s affidavit. The details were published in the daily newspapers this morning, which had caused Yusof to raise a point in court that he was unhappy that the contents of the affidavit had been published before it was read in open court.
According to Yusof, affidavits should not be made readily available to the press because it may “contain scandalous details which parties may later apply to strike out.”
“Unless the facts and position is accepted, it is difficult to submit,” Karpal said, adding that Anwar had to file a reply or else factual matrix which the application was based upon would not be established properly.
Karpal also countered Yusof’s argument by stating that based on earlier judgement by former chief justice Tun Eusoff Chin all court documents were public documents, hence the media had a right to view them.
The judge then granted Karpal time to prepare for the affidavit-in-reply to the prosecution’s affidavit.
“I don’t want to be seen to encroach on freedom of the press. I believe in freedom of the press but ... if a reporter reports something inaccurately, they have to face the music. If the court imposes a penalty, they cannot say the court does not uphold freedom of the press,” said Mohd Zabidin.
Karpal had also argued that the Special Branch officers from the police force should not be allowed in court. The judge replied by stating that they had a right to attend, but should remain within the confines of the public gallery.
Earlier, Karpal had also requested that the court’s transcripts of the case proceedings be made available to the defence.
The original application to disqualify the judge was based on dissatisfaction over how the judge had dealt with the Utusan Malaysia coverage of Anwar’s trial which “brings to surface an element of danger of bias on the part of the learned trial judge.”
Karpal had applied to court to cite Utusan for contempt of court as he argued that what was published on Feb 4 was tantamount to contempt of court.
However, Zabidin had dismissed Karpal’s application on the grounds that “the said reports were not carried with the intention of being mischievious and to disrupt trial proceedings when clearly there was no evidence on affidavit or otherwise to show such intention or mischief by Utusan Malaysia.”
Similarly the judge had with regards to the Feb 5 coverage by Utusan declined to caution the newspaper despite the defence’s contention that the news report was misleading.
Zabidin’s reasoning was that the publication of the picture as evidence regarding the bed had been given in open court the previous day, which Karpal argues did not actually occur.
The trial is in its fifth today to hear Saiful’s complaint that he was sodomised by Anwar, who described the charge as “evil, frivolous lies by those in power” when it was read out to him on Feb 2. He is charged under section 377B of the Penal Code and can be sentenced to a maximum of 20 years’ jail and whipping upon conviction. The trial is taking place 18 months after Anwar was charged in court in August 2008.
Anwar was charged with sodomy and corruption in 1998 after he was sacked from the Cabinet and was later convicted and jailed for both offences. He was freed in September 2004 and later resurrected his political career by winning back his Permatang Pauh parliamentary seat in a by-election in 2008, which had been held in the interim by his wife.
He had earlier led the opposition coalition, Pakatan Rakyat, to a historic sweep of five states and 82 parliamentary seats in Election 2008.
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There is no point to find ways and means to obstruct the proceeding from moving on and get over the case.
By dragging on the case the toll is on Anwar himself and PKR in general. There is no benefit to gain from delaying his sodomy II case in court.
He is wasting taxpayers money in trying all ways unreasonable to delay the case from moving forward. That is not in the name of justice, as we see it, more a sandiwara in court.