Anwar fails to get Federal Court to review its decision

The Federal Court has today decided not to review its Jan 29 decision barring Anwar Ibrahim from gaining more key evidence such as CCTV footage, medical reports and witness statements from the prosecutors.

The three-member panel led by justice Zulkefli Ahmad Makinuddin made the unanimous decision that it has dismissed Anwar's application for review.

"This is not a suitable case for review by another panel of the court. We should not relitigate the matter of one that has been decided," said Zulkefli.

The other two Federal Court judges are Mohd Ghazali Mohd Yusoff and Heliliah Mohd Yusof.

A review at the Federal Court is not an automatic right as an applicant has to satisfy that “there was an error in law” for the court to agree to a review, which is extremely rare.

Today's decision may effectively denied the Federal Court the powers to review its own decision.

There had been 10 previous decisions since 2001, presided by four previous chief justices, where the Federal Court allowed a review of its own decision.

According to Karpal, the decision today is a major disaster not in regards to the Anwar case but the apex court's inherent power to review.

'Trial conducted by ambush'

Earlier today, Anwar's lead counsel Karpal Singh (left) told the court that he regretted the review was being heard now as the additional evidence sought could have been used in the on-going sodomy trial.

He complained that the defence had yet to receive the list of prosecution witnesses and that this was “unbecoming conduct” of the prosecution in ensuring a fair trial.

“The trial is being conducted via ambush,” charged Karpal.

The lawyer added that Anwar had brought in three specialists from overseas and they were not allowed to view the evidence.

“Is this not fair?” Karpal asked.

Zulkefli then asked if the three-member panel could review a decision made by another panel which had already heard the merits of the argument.

Karpal said the court can review its own decision as there was clear injustice.

“The trial had in fact begun but we have yet to get the documents,” he said.

Solicitor-general: Ruling should be final

After Karpal had finishing his submission, it was the turn of solicitor general II Mohd Yusof Zainal Abiden.

Mohd Yusof argued that the court was not empowered to review its decision as the judgment as delivered by the apex court was final.

He said any attempt to relitigate a final decision by the Federal Court was an abuse of the court process.

According to Mohd Yusof, even the US Supreme court has no power to review its own decision.

"The court should not grant a second appeal," he urged.

On Jan 29, Federal Court judge Justice Abdull Hamid Embong, as part of a three-member panel, ruled that the High Court judge had erred when he adopted a liberal meaning of Section 51 and Section 51A of the Criminal Procedure Code.

He said Section 51 does not grant wide ranging application to get the document.

"Its scope is restricted in law. In our view, the High Court judge went overboard in deciding to expand Section 51 and had effectively changed the law by ordering the prosecution to provide the documents.

"Changes in the law is for the Parliament to decide not the judiciary. Judges interpret the law and judges under the guise of interpretation should not provide their own preferred amendments to the statutes," he said.

Both sides completed submissions at noon and the court went into recess to allow the three-member panel to arrive at a decision.

Dangerous precedent

Earlier, Karpal described the Federal Court's ruling that such documents cannot be handed before the commencement of a trial as a “dangerous precedent”.

"The decision to reject our preliminary objection would open the floodgates for each and every case to contest decisions made while the matter is still under trial. This will prolong and delay hearings.

"The court has gone backwards to before the days of 1988 with this ruling," he added.

In a rare victory for Anwar on July 16, the trial judge Mohamad Zabidin Mohd Diah ruled to allow the opposition leader to gain more evidence.

However, the appellate court had on Dec 24, overturned the decision when it ruled that Anwar was not allowed to fish for evidence before the trial commences.

Anwar faces an on-going sodomy trial where he is charged with sodomising his former aide Mohd Saiful Bukhari Azlan, at the Desa Damansara condominium, in Jalan Setiakasih, Bukit Damansara on June 26, 2008.

Mohd Saiful had already completed his examination-in-chief, while he is scheduled to be cross-examined by Anwar's defence lawyers when the trial resumes.

news courtesy of Malaysiakini