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 accepted.
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 CPC.
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 case.
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 proposition.
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 requirement."
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 explained.
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 to uphold.
Bertarikh: 7hb. November 2008.
(SM. KOMATHY SUPPIAH)
Mahkamah Sesyen Jenayah 1