Friday, February 26, 2010

NEWS: Anwar rejected again, Fed court cannot review Fed court

Sodomy II: Anwar fails to get Federal Court to review its decision

KUALA LUMPUR: The Federal Court has ruled that it does not have the jurisdiction to review its Jan 29 decision, denying Opposition leader Datuk Seri Anwar Ibrahim access to documents he is seeking for the preparation of his defence in his second sodomy trial.

In a unanimous decision, Federal Court judges Justices Zulkefli Ahmad Makinudin, Mohd Ghazali Mohd Yusoff and Heliliah Mohd Yusof said: “Rule 137 (of the Rules of the Federal Court) does not confer jurisdiction on the Federal Court to review its own decision.”

“Even assuming that there is a limited inherent power, the applicant has failed to come within the limited exceptions that have been distilled from earlier decisions of the Federal Court,” said Justice Zulkefli in delivering the oral judgment Thursday.

Rule 137 of the Rules of the Federal Court states that nothing in these rules “shall be deemed to limit or affect the inherent powers of the Court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.”

Justice Zulkefli added that the issues raised by Anwar in the motion for the review had been “duly considered and dealt with in the judgment of the Federal Court in this instant case.”

“That panel of the Federal Court did not agree with the applicant on these issues and their interpretation of the law.

“Hence, we find that this is not a suitable case for review by another panel of the Federal Court.”

Justice Zulkefli added that even if this panel were to disagree with those findings it would not constitute a ground that warrants a review of that decision.

“There must be finality. To re-litigate a case which has been heard and finally disposed of is not one of the circumstances as envisaged by Rule 137 of the Federal Court,” he said.

Speaking to reporters later, Karpal said Thursday’s decision meant that an applicant could not go to the Federal Court “once it has made a decision, unless this Federal Court decision is overruled.”

However, he said judgment was not an obstacle for Anwar as he could apply for the documents or other material when necessary, as the trial proper had commenced.

On July 16 last year, the High Court had granted Anwar’s application under Section 51A of the Criminal Procedure Code to compel the prosecution to supply him with key documents which included among others, CCTV recordings, copies of witness statements as well as the medical and chemist’s notes.

The court, however, refused his request for the DNA samples taken from Mohd Saiful Bukhari Azlan, the complainant in the case against Anwar.

On Nov 6, the Court of Appeal allowed the prosecution’s appeal and unanimously overturned the High Court ruling, and also dismissed Anwar’s cross-appeal for the DNA samples.

On Jan 29, the Federal Court had unanimously upheld the Court of Appeal ruling. It held that ruled that, at this stage, Anwar was entitled only to documents and materials pertaining to the charge, which had already been given to him.

Anwar, 62, is charged with sodomising his former aide Mohd Saiful, 24, at a condominium in Bukit Damansara, Kuala Lumpur on June 26, 2008.

Anwar’s sodomy trial is fixed for mention on March 25, pending the outcome of Anwar’s appeal to the Court of Appeal against the High Court’s dismissal of Anwar’s application to recuse the trial judge Justice Mohamad Zabidin Mohd Diah from hearing the case.

Source: The Star



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