Appeals Court judge recuses herself, Anwar's bid to strike out suit on pardon postponed

PUTRAJAYA: Court of Appeal judge Datuk Nor Bee Ariffin has recused herself from hearing Datuk Seri Anwar Ibrahim's appeal against a High Court's dismissal of his application to strike out a lawsuit over the legality of his royal pardon for his sodomy conviction.

Following her recusal, the appeal hearing scheduled today before the Court of Appeal three-member bench has been put off.

Justice Nor Bee, who chaired the bench said in 2016 she had decided in the judicial review brought by Anwar and his family against the Pardons Board for the Federal Territories of Kuala Lumpur when she was a High Court judge then.

She said the issue on the justiciability of the decision of Pardons Board was cited in that case and a ruling was made, adding that she had dismissed Anwar's application for leave to commence the judicial review on the premise the subject matter was not justiciable.

She said in the present appeal, the person who successfully sought the pardon was Anwar.

“In the circumstances, in view of this development, I shall not be sitting for this case and a date will be fixed for a case management,” said Justice Nor Bee.

Justices S. Nantha Balan and Datuk Lee Heng Cheong were the other two judges presiding on the bench. The proceedings was conducted virtually.

Justice Nor Bee also said the stay of the hearing of the suit in the High Court to be continued until the appeal is disposed of.

Lawyer Mohamed Haniff Khatri Abdullah who represented Mohd Khairul Azam Abdul Aziz, who had filed the lawsuit against Anwar and the Pardons Board for the Federal Territories of Kuala Lumpur, had sought for Justice Nor Bee's recusal.

However, Anwar's counsel Datuk Seri Gopal Sri Ram did not object to Justice Nor Bee presiding on the bench to hear the appeal.

On Sept 21 last year, the High Court dismissed both Anwar and the Pardons Board's application to strike out the lawsuit, after finding that Mohd Khairul, also a lawyer had locus standi to initiate the legal suit as he is a member of the public and a qualified person as lawyer.

The Port Dickson MP filed the striking out application among others, on grounds that Mohd Khairul Azam had no locus standi to file the originating summons and that it was frivolous, an embarrassment and abuse of the court process.

Mohd Khairul Azam, who filed the originating summons on Feb 26 last year, naming Pardons Board and Anwar as respondents, claimed that several unconstitutional actions had been taken to ensure that Anwar received a pardon which released him from prison following the 14th General Election.

He claimed that the pardon granted to Anwar by the Yang di-Pertuan Agong was in contravention of Articles 42 (4) and (5) of the Federal Constitution in view of the fact that pardons granted by the Agong should be based on the advice of the Pardons Board which he (Mohd Khairul Azam) argued had not yet been formally formed following the General Election on May 9, 2018, and the formation of the new government.

Anwar was sentenced to five years’ jail for sodomising his aide, Mohd Saiful Bukhari Azlan, and the conviction and sentence were affirmed by the Federal Court on Feb 10, 2015.

Lawyer Datuk M. Reza Hassan also represented Mohd Khairul Azam, while lawyer J. Leela also appeared for Anwar. Senior federal counsel Suzana Atan appeared for the Pardons Board.

-- BERNAMA