DALAM MAHKAMAH SESYEN DI KUALA LUMPUR
KES TANGKAP NO: 62-407-2008
DATO SERI ANWAR BIN IBAHIM
GROUNDS OF JUDGMENT
1. On 7th August 2008; Dato Sri Anwar Ibrahim (the accused) was charged for the
offence of committing carnal intercourse against the order of nature under
section 377B of the Penal Code.
2. On the next mention date, on 10th September the prosecution tendered a
certificate under section 418(A) Criminal Procedure Code (CPC) dated 9th
September 2008 requiring this court to transfer the case to the Kuala Lumpur
High Court. This certificate was personally signed by the Attorney General (AG),
Tan Sri Abdul Gani Patil.
3. The defence protested to the involvement of the AG in the this case for
issuing the impunged certificate contrary to the public representation and
promise given by the Prime Minister, Datuk Seri Abdullah Ahmad Badawi that the
AG would not be involved at all in this case.
3. The prosecution contended that it was the AG's prerogative under section 418A
CPC to issue the impunged certificate and that it was incumbent on the court to
ipso factor transfer the case to the High Court.
4. On 7th Oct 2008, I had ruled that the validity of the certificate was a
matter that had to be decided by this court before it could act on it and
transfer the case to the High Court. The sole issue for this court's
determination is whether the certificate issued by the AG dated 9th September
2008 under section 4.113.A CPC is valid or otherwise.
5. The issue was determined on a contest of affidavits and written submission
was received. For the defence, the Accused swore two affidavits dated 22nd
September 2008 and 29th October 2008, respectively, whilst his wife Datuk Wan
Azizah binti Wan Ismail swore an affidavit dated 29th October 2008. The
prosecution filed only one affidavit and this was sworn by the Honourable
Solicitor General, Datuk Idrus Harun. It was affirmed on 8th October 2008.
6. The Accused has asserted in his affidavits that he had on 1st July 2008,
lodged a police report against the AG for fabricating evidence against him to
cover-up the assault on him in 1998 by the then IGP that led to the now infamous
black eye. In the normal course of events, the report would have been the
subject of police investigation but because of police complicity in the
allegation, the investigation is instead being conducted by the Anti Corruption
Agency, at the Prime Minister's behest. The investigation by the ACA on this
report is currently ongoing.
7. When the highly publicised and dramatised investigation of the Accused in
respect of the present sodomy charge was ongoing, the Accused had complained
that he would not be investigated and treated impartially by the AG given the
grave and serious nature of the allegations by the Accused against the AG.
8. In response to this perception by the Accused, the Prime Minister had on 19th
July 2008, at a press conference given his assurance and representation that the
AG will have no role in this case. This assurance was reported in several
newspapers and has not been revoked or contradicted.
9. The assertion of the Accused as regards the promise given by the Prime
Minister was corroborated by his wife, who stated that she and her daughter had
personally seen the Prime Minister on 1st July 2008 at his office and that the
latter had assured them that the 1998 incident would not be repeated and
promised a fair and impartial investigation and prosecution. In paragraphs 8, 9
and 10 of her affidavit, she went on to state as follows:
(8) selanjutnya, semasa pertemuan dengan Perdana Menteri, beliau juga telah
memberi jaminan bahawa tertuduh tidak akan dicederakan atau dipukul sepertimana
yang berlaku pada insiden 1998. Berikutan dengan itu saya juga berfahaman bahawa
memandangkan Gani dan Musa adalah terlibat dalam dakwaan permalsuan keterangan
terhadap tertuduh berhubung dengan insiden mata lebam, maka Gani dan Musa sama
sekali tidak harus dan .tidak akan terlibat, campurtangan dan mengambil apa jua
peranan dalam penyiasatan dan pendakwaan terhadap tertuduh berkaitan laporan
terbaru ke atas tertuduh.
(9) Saya menyatakan bahawa jaminan-jaminan yang telah diberikan oleh Perdana
Menteri kepada saya semasa pertemuan tersebut telah memberikan saya "legitimate
expectation" bahawa apa yang telah dimaklumkan kepada saya adalah benar dan akan
dituruti oleh pihak pendakwaan.
(10) Saya kemudiannya telah memaklumkan kepada tertuduh pada 2.7.2008 berhubung
dengan jaminan-jaminan yang telah diberikan oleh Perdana Menteri (sepertimana
yang dinyatakan di perenggan-perenggan atas) kepada saya bersarna Nurul Izzah.
FAILURE TO CHALLENGE ASSERTIONS IN AFFIDAVIT
10. The assertions of the Accused and his wife in their affidavits were not
controverted, denied or disputed by the prosecution.
11. It is trite that in a contest of affidavits, an affidavit must reply
specifically to allegations, and if it does not, than those allegations not
replied to must be taken to have been accepted. See Ng Hee Thong & Another v
Public Bank Berhad (1995) 1 CLJ 609.
12. There is no explanation proffered here as to why the facts asserted by the
Accused in his affidavit were not refuted.
13. In the premises, applying the rule of evidence in Ng Hee Thong's case, all
the averments of the Accused and his wife in their three affidavits must be
GROUNDS IN SUPPORT OF APPLICATION
14. The defence relies on 2 grounds, viz legitimate expectation arising from the
promise give by the Prime Minister and secondly, the rule against bias to
support the submission that the certificate signed by the AG is invalid.
15. The Court of Appeal in the case of Syarikat Bekerjasama-sama Serbaguna
Sungai Gelugor v Majlis Perbandaran Pulau Pinang (1996) CLJ 335, cited with
approval the following passage from the judgment of Simon Brown LJ expounding
the doctrine of legitimate expectation in the English case of R v Devon C.C. ex
parte Baker (1995) 1 AER:
The final category of legitimate expectation encompasses those cases in which it
is held that a particular procedure, not otherwise required by law in the
protection of an interest, must be followed consequent upon some specific
promise or practice. Fairness requires that the public authority be held to it.
The authority is bound by its assurance, whether expressly given by way of
promise or implied by way of established practice.
16. On appeal, the Federal Court, approved the observations of the Court of
Appeal on the doctrine of legitimate expectation. This judgment is reported in
(1999) 3 MLJ 1.
16A. In the South Africa case of Jacob Gedleyihlekisa Zuma v National
Director of Public Prosecutions Case No 8652/08, the prosecuting authority had made
certain representations at a press conference and the court found that the
representations were binding on the authority. The court explained the principle
of 1egitimate expectation as follows:
... ‘[L]egitimate expectations… are capable of including expectations which go
beyond enforceable legal rights, provided they have some reasonable basis ... [E]ven
where a person claiming some benefit or privilege has no legal right to it, as a
matter of private law, he may have a legitimate expectation of receiving the
benefit or privilege, and if so, the Courts will protect his expectation by
judicial review as a matter of public law ... Legitimate, or reasonable,
expectation may arise either from an express promise given on behalf of a public
authority or from the existence of a regular practice which the claimant can
reasonable expect to continue...
17. It is clear from the authorities that the question the court has to consider
whether the representation or promise by the Prime Minister gave the Accused the
legitimate expectation that the AG would not be involved in this case.
18. It is not in dispute that the Prime Minister made this representation but
the prosecution contends that the Prime Minister is not legally competent to
give this promise in view of Articles 145(3) and 145(3A) of the Federal Constitution.
These two provisions expressly provide that the discretion to institute
prosecution and all other powers incidental to it, is vested with the AG. The
prosecution glibly added that the Prime Minister being also a politician could
have given the promise to please the people he was addressing and the same was
not binding on the AG. It was stressed that it was the AG who had the power
under the Federal Constitution to make such a promise.
19. I must at once say that the solemn words of the head of the executive of
this country on specific and serious matters such as those complained of in this
case, cannot be trifled with. On the contrary, the Prime Minister must have
given the matter due consideration and must have had the overriding interest of
justice and due process of law in giving his word that the AG would play no part
in this case.
20. This court does not accept the suggestion the Prime Minister was usurping
the power given to the AG under the Federal Constitution when he gave the
promise. It must be remembered that at the material time, the AG, as the
principal legal officer of the Government, was the subject of a criminal
investigation in relation to the police report by the Accused and that former
had threatened the latter with civil action. The Prime Minister as the head of
the executive rejected the opposition's demand to suspend the AG and gave the
public assurance that the latter would not be involved in the case against the
Accused. I therefore find that the Prime Minister was not playing fast and loose
but gave his word and intended it to be taken seriously. That the office of the
AG also took the assurance seriously is evident from the fact that when the
Accused was first charged in this court, the Honourable So1icitor General led
the prosecution team.
21. That assurance, in my view, created a legitimate and reasonable expectation
in the Accused and the public that the Tan Sri Gani Patil will not be personally
involved in this case.
22. The prosecution contends in the alternative that even if the Prime Minister
had the authority to make this representation, the disqualification on the AG is
limited to not making the decision whether or not to prosecute the Accused and
does extend to the exercise of the statutory power conferred under section 418
23. I find this proposition untenable. If the AG is disqualified by reason of
the reasonable perception that there is a likelihood of bias on his part, then
this disqualification, if it is to be meaningful, must extend to each and every
aspect of the case from inception to final conclusion at the highest level.
24. I also find that that legitimate expectation of the Accused that the AG
would not be involved in this case is further bolstered by the "Clients Charter"
of the Prosecution Division of the AG Chambers which reads:
We are committed to conduct criminal prosecutions in a fair and just manner and
to render legal advice in accordance with the Federal Constitution and the laws
of the country with public and national interest as the foremost considerations.
25. The representation by the prosecution to the public i.e. "Client" that they
are committed to conduct prosecutions in a fair and just manner is nothing more
than a promise to observe the rules of natural justice. This representation
gives rise to a legitimate expectation in the Accused that there shall be no
bias on the part of the prosecution.
26. Going hand in hand with the Clients Charter are the United Nations
"Guidelines On The Role of Prosecutions" which was adopted by Malaysia in 1990.
Those guideline require the prosecution to perform their functions impartially
and fairly to ensure due process and the smooth functioning of the criminal
justice system. (See Clause 12 and 13 of the Guidelines).
26A. As the certificate in this case is personally signed by the AG, this
amounts to a breach of the legal expectation of the Accused that the AG would
not be involved in this case.
RULE AGAINST BIAS
27. The second ground on which the defence contends that the certificate is
invalid is grounded on a rule of natural justice, to wit, the rule against bias.
28. As mentioned earlier, in the absence of any refutation of the assertions of
the Accused, it must be accepted that there is no love lost between the Accused
and the AG. The defence contends that this has put the AG in a position of
conflict (or perceived conflict) of interest, and he is thereby totally
disqualified from this case including in making the decision to transfer the
29. The prosecution does not dispute that the relationship puts the AG in a
position of conflict, but contends that the rule against bias would only apply
in the present case if the AG was exercising a judicial or quasi judicial
function in respect of the issuance of the certificate. It is said that that the
AG was not exercising a judicial function but an administrative function when he
issued the transfer certificate.
30. The answer to the question as to whether the AG was exercising a judicial or
administrative function in respect of the transfer is to be found in the
decision of the Federal Court in PP v Dato’ Yap Peng (1978) 2 MLJ 311. In that
case, Abdoolcader SCJ said as follows:
I have in my judgment in the Bank Rakyat case (at page 119-120) dealt with the
powers of the Attorney General under article 145(3) and the connotation of his
power to ‘institute' and 'conduct' criminal proceedings. My discourse in this
regard was approved and adopted by the Federal Court in Public Prosecutor v Lim Shui Wang & Others (at
page 67). I said there, and I repeat, that the power of
the Attorney General under article 145(3) cannot and does not connote or extend
to the regulation of criminal procedure or of the jurisdiction of the courts or
the power or discretion to do so. The power to transfer a case is judicial power
exclusively exercisable by a court in the manner provided for in sections 138,
177 and 417 of the Code. The power to transfer is similarly designated as a
judicial power and provided for in section 25 and paragraph 12 of the Schedule
to the Courts of Judicature Act, 1964.
31. It is clear from the passage as reproduced above that the AG was in fact
exercising a quasi-judicial power when he signed the transfer certificate.
Accordingly, the rule against bias would disqualify him from issuing the
DOCTRINE OF NECESSITY
32. The prosecution submits in the alternative that even if the AG is held to be
exercising a quasi-judicial function in issuing the section 418A certificate,
he is still not subjected to the rule of bias in view of the mandatory nature of
section 418(A) (2)CPC. It is pointed out the powers under section 418A are
exclusive to the AG and cannot be delegated.
33. The cases of Franklin and Ors v Minister of Town and Country Planning (1948)
AC 87 and Mohd Zainal Abidin Bin abdul Mutalib v Dato Seri Dr. Mahathir bin
Mohamed, Minister of Home Affairs (1989) 3 MLJ 170 were cited in support of this
34. I am unable to accept this submission. The doctrine of necessity cannot be
invoked in this case as prosecution can resort to other provisions in the CPC
such as sections 417 and 177 CPC to transfer the case to the High Court.
DECISION IN PP V DATO’ YAP PENG
35. In this case, Abdoolcarder SCJ at p318 observed as follows:
“No one can question the decision of the Public Prosecutor when he issues a
certificate under section 418A. His decision is final and the Subordinate Court
must remove the case to the High Court upon receiving the certificate."
36. And, at the same added as follows:
“Section 418A(l) empowers the Public Prosecutor, who is the Attorney General, by
the issue of a certificate to require a subordinate court to remove to the High
Court any particular case triable by and pending before it. It confers on him
untrammeled and uncontrolled power in very wide terms to effect this
37. The prosecution relies heavily on the aforesaid dicta to contend that this
court has no power to refuse the transfer.
38. The facts in Dato' Yap's case are clearly distinguishable from the facts in
the present case. In that case, the head of the executive did not give any
promise. Hence, the certificate issued by the Public Prosecutor in Yap's case
was a prima-facie valid certificate. That is not the case here.
REASONS FOR TRANSFER
39. It is to be noted that in paragraph 5 of the Honourable Solicitor General's
affidavit, the reasons for the transfer of the case to the High Court are
40. The defence contends that these reasons are without merit and there is
nothing in the aforesaid affidavit to show that the AG had applied his mind on
the issue of transfer.
41. It is clear from the decision in Dato' Yap's case (supra) that a subordinate
court cannot go into the validity of the reasons for the transfer. In my view,
this cannot be a ground to challenge the validity of the transfer certificate.
42. For the reasons I have stated, I find the certificate to be invalid.
43. This court would like to make it clear that the decision here does not in
any way detract or impinge on the absolute authority the AG enjoys under the
Federal Constitution in the institution and conduct of criminal prosecutions.
However, this case raises a unique situation where it is evident that any
involvement by the AG in this case would seriously undermine public confidence
in the administration of criminal justice. That is the compelling and overriding
factor that warranted the Prime Minister's promise which this court is prepared
Bertarikh: 7hb. November 2008.
(SM. KOMATHY SUPPIAH)
Mahkamah Sesyen Jenayah 1