Sodomy II: Anwar fails to recuse judge
KUALA LUMPUR: Opposition leader Datuk Seri Anwar Ibrahim failed to recuse judge Justice Mohamad Zabidin Mohd Diah from further hearing his sodomy trial.
In rejecting the disqualification application by Anwar Thursday. Justice Mohamad Zabidin said he did not find any reason for him to recuse himself.
“If I recuse myself in such circumstances, it will mean that I am running away from my responsibility as a judge. A judge who has taken an oath of office should not avoid carrying out the duty which has been entrusted to him,” he said.
Justice Mohamad Zabidin said the law to recuse a judge from hearing a case entrusted to him was clear.
“There must be facts to show that a rational person would think that there was a possibility that the judge will make his decision over the tried issues not based on the evidence adduced in court, but on other considerations,” he said.
In elaborating, Justice Mohamad Zabidin said he did not see how a rational person would think that he would decide over the issue whether the sodomy incident had occurred between Anwar and the complainant not based on the testimony tendered in court, but based on other considerations.
“After observing the submissions and affidavits filed by both parties, I did not see how a rational person would think in such a way,” he said.
On Karpal Singh’s accusing him (the judge) of being a liar when he made his rulings in relation to news reports, Justice Mohamad Zabidin said the evidence given by key witness Mohd Saiful Bukhari Azlan and Anwar’s affidavit would show that the allegation was unfounded.
Karpal is the lead defence lawyer for Anwar, who last Monday applied to recuse the trial judge on the grounds that his two rulings concerning news reports of the case and a photograph published by a Malay daily had raised an element of bias.
When the case was recalled at 10.06am on Thursday for trial, Karpal said he was prepared to cross-examine Mohd Saiful.
At this juncture, lead prosecutor Solicitor-General II Datuk Mohd Yusof Zainal Abiden tendered a case law to the judge and asked if the defence planned to appeal the recusal ruling.
Karpal replied that the defence had no choice but to appeal over the recusal ruling due to the High Court bound by the case law (Rowstead 2005).
(In the case law on allegation of bias against High Court judge, the Court of Appeal judge found that the judge should grant a stay pending disposal of an appeal to avoid the proceedings becoming nugatory or useless).
“We do not want to be accused of delaying tactics. It has to be taken out from the mind of the judge, the prosecutors and everyone,” said Karpal, who also questioned the motive of the prosecutor.
Karpal argued that there were “too many element coming to the trial.”
“We do not want Pemuda Umno to go wild. There is a black hand behind the whole prosecution ...,” he said in open court.
Karpal said the trial had to expose everything while DPP Mohd Yusof said the Malaysian public wants to know the truth.
At this juncture, Anwar shouted from the dock: “Yes for the truth and not blantant lies.”
Those seated in the packed public galllery also shouted “the truth” “a conspiracy” and “a lie.”
Karpal immediately urged the judge to grant a stay pending disposal of the appeal by Anwar on the recusal ruling. The judge adjourned briefly.
When the court resumed, the judge granted a stay pending disposal of the appeal on the recusal ruling.
“It is important for a higher court to decide on this matter to avoid any violation of principles. If the Court of Appeal decides that my ruling on the recusal application is erroneous, then as stated by the case law, it will only make the proceedings nugatory,” he said.
The judge set March 25 for mention.
Anwar’s lawyer Sankara Nair said the appeal over the recusal ruling would be filed at the Court of Appeal registry on Friday.
Anwar, 63, claimed trial to sodomising his former aide, Mohd Saiful, 24, at the Desa Damansara Condominium in Jalan Setiakasih, Bukit Damansara, here between 3.01pm and 4.30pm on June 26, 2008.
He is charged under Section 377B of the Penal Code and could be sentenced up to 20 years and whipping upon conviction.
Blow-by-blow account of today's proceedings:
10.55am: Anwar's sodomy trial has been stayed pending an appeal over recusal ruling. Judge Justice Mohamad Zabidin fixes March 25 for mention.
10.15am: Karpal Singh said the court has to grant a stay pending an appeal due to case laws tendered by the prosecution. Justice Mohamad Zabidin adjourns trial briefly to decide whether to grant the stay. Earlier, Karpal said he was prepared to cross-examine the prosecution’s first witness Mohd Saiful Bukhari Azlan. He also said that they would file an appeal against the Court of Appeal’s decision to strike out his sodomy charge. They would also file an application to stay Anwar’s sodomy trial at the Federal Court registry later on Thursday.
10.05am: In his ruling, Justice Mohamad Zabidin said he did not see any reason for him to recuse himself.
He added to do so, would be tantamount to running away from his responsibilities as a judge.
Outside at the court lobby, some of Anwar’s Muslim supporters sat quietly and started reciting prayers for their leaders while non-Muslims also gathered in unison with them. Scores of camera men and videographers are on standby while police personnel are standing guard both in and outside the lobby and outside the fifth floor courtroom.
9.55am: Anwar fails to recuse judge Justice Mohamad Zabidin Mohd Diah from further hearing his sodomy trial.
9.15am: Opposition leader Datuk Seri Anwar Ibrahim arrives at the Kuala Lumpur High Court with wife Datuk Seri Dr Wan Azizah Wan Ismail, three daughters and his older brother. A crowd of his supporters gather at the lobby while the police are on standby. Earlier, three foreign experts engaged by Anwar to assist him in the sodomy trial arrive with one of his lawyers, SN Nair
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