PETALING JAYA: Anwar Ibrahim’s suit against the government for allegedly securing his conviction for sodomy through fraudulent means should be struck out as he has named the wrong party, the High Court was told today.
Government lawyer Awang Armadajaya Awang Mahmud said Anwar should have named the Attorney-General (AG), who is also the public prosecutor, instead of the government.
He said Article 145 (3) stated that the AG, acting as public prosecutor, had the discretion to institute criminal proceedings in civil courts.
“The AG, who doubles up as public prosecutor, is not the government in criminal cases,” he said in his submission to nullify the opposition leader’s civil suit.
Awang Armadajaya said the AG was part of the establishment as legal adviser to the federal government as provided under Article 145 (1).
He said sodomy victim Mohd Saiful Bukhari Azlan was never the prosecution’s agent to present false evidence to get Anwar convicted for the crime.
“The allegation of fraud by the plaintiff (Anwar) has cast aspersions on the prosecuting team in the High Court led by (the then head of prosecution) Mohamed Yusof Zainal Abiden,” he said.
Saying Anwar did not give particulars of the persons who allegedly committed the fraud, Awang Armadajaya added that the suit must be revoked without having to go to trial as the pleadings in the suit were incomplete.
He said Anwar was attempting to revisit the sodomy conviction after two failed review attempts in the Federal Court.
On April 17 last year, Anwar filed a fresh suit in another attempt to be released from jail, saying the finding of guilt must be set aside as the conviction was based on perjured evidence by Saiful, his former aide.
In the statement of claim, Anwar said the government (public prosecutor) knew and had knowledge that Saiful was an untruthful witness.
The opposition leader said the government had fabricated false evidence in the form of an alleged DNA sample and had used it to support the perjured evidence of Saiful.
Anwar said the government had fraudulently, and with intention to injure him, “put forward” Saiful, the main prosecution witness.
He said Saiful’s evidence was perjured and the act of sodomy never took place or could not have happened by virtue of his (Saiful’s) own account.
Anwar said the judgments of the Court of Appeal and Federal Court were invalid and must be set aside as provided under Section 44 of the Evidence Act.
He is currently serving a five-year jail sentence at the Sungai Buloh Prison for sexual misconduct on Saiful in 2008.
He was initially acquitted by the Kuala Lumpur High Court on Jan 9, 2012. However, the Court of Appeal reversed the acquittal and sentenced him to five years’ jail on March 7, 2014, a decision which was affirmed by the Federal Court the following year.
Lawyer N Surendran, who is appearing for Anwar, said the governmenthad been rightfully named defendant because the AG was its agent.
“The crown (government) must be held responsible for securing the conviction by fraud,” he said.
Surendran said Anwar could not name judges as party to the fraud as the judiciary was immune from civil or criminal action in the course of performing their duty .
He said Anwar’s statement of claim contained adequate particulars of persons who were parties to the fraud and that included Saiful, the crown prosecution witness.
“Even if the particulars were inadequate, it is no reason to strike out the suit,” he added.
Justice Nik Hasmat Nik Mohamad will deliver his decision on March 12.