Court of Appeal judge recused from hearing sodomy II appeal

Justice Datuk Ramly Ali, chairing the panel, said the court would appoint another judge to replace Tengku Maimun.

The panel, also comprising Datuk Mohd Zawawi Salleh, had allowed Anwar's preliminary objection on the grounds that she heard Anwar's defamation suit against former prime minister Tun Dr Mahathir Mohamad in 2007.

"We've deliberated on the issue. We allowed the preliminary objection. Tengku Maimun, with her consent, will recuse herself," Justice Ramly said.

He fixed tomorrow to hear the opposition leader's application to have senior lawyer Datuk Seri Muhammad Shafee Abdullah disqualified from appearing as public prosecutor to lead the prosecution in its appeal against Anwar's acquittal. However, Justice Ramly said the prosecution's appeal proper over Anwar's acquittal would not be heard tomorrow, but at a later date by the same panel.

Muhammad Shafee was appointed public prosecutor by the attorney-general by way of a "fiat" to lead the prosecution in its appeal against the Kuala Lumpur High Court's decision on Jan 9, last year which acquitted and discharged Anwar, 64, on a charge of sodomising Mohd Saiful Bukhari Azlan, 26.

Anwar was accused of committing the offence at a Desa Damansara condominium unit in Bukit Damansara between 3.10pm and 4.30pm on June 26, 2008.

In today's proceeding, Anwar's lawyer Karpal Singh sought the recusal of Tengku Maimun as he said she had, in her judgment in the defamation suit, adopted the finding of facts made by the Federal Court in the first sodomy case where Anwar and his adopted brother Sukma Darmawan Sasmitaat Madja were accused of sodomising his (Anwar's) family driver Azizan Abu Bakar.

In the first sodomy case, the Federal Court had on Sept 2, 2004, in a two-one majority decision, acquitted Anwar and Sukma Darmawan.

However, there was a specific finding by the judges of the majority judgment stating that the court had found evidence to confirm that the appellants (Anwar and Sukma Darmawan) were involved in homosexual activities and that the court was more inclined to believe that the alleged incident in Tivoli Villa did happen.

Karpal submitted that there was a likelihood of bias if Tengku Maimun sat on the panel to hear the prosecution's appeal as she had held the Federal Court's view.

Muhammad Shafee argued that Tengku Maimun should not be recused from presiding on the panel.

He said the case was six years ago and involved a striking-out application resulting in the matter not proceeding through a full trial.

He said she did not make the finding of facts but only adopted the Federal Court's finding of facts.

On Jan 9, last year, High Court judge Datuk Mohamad Zabidin Mohd Diah, in acquitting Anwar, ruled that there was penile penetration but it was uncorroborated by other evidence.