The Outline of Reasons delivered by the Court of Appeal on July 2, 2009 is here.

The Court held inter alia:

I. On the issue of legitimate expectation that the AG would not in any way partake in the prosecution of DSAI:

… 46. In our view that assurance given by the former PM should be taken only in that context, that the PP should no longer be seen to appear in court proceedings relating to the prosecution of this charge against the appellant. It could not be stretched to mean that the former PM intended to bar the PP from exercising his formal statutory functions, such as putting down his signature on this certificate. …

II. On the issue of bias, conflict of interest and necessity:

… 53. In this case, we are of the considered opinion that the rule that a person under a suspicion of bias should not act as an adjudicator is not applicable to the act of the PP in signing this certificate. We would apply the exception that natural justice may be overridden by a statutory provision as enunciated in FRANKLIN & ORS v MINISTER OF TOWN AND COUNTRY PLANNING (1948) AC 87, an exception which is applicable in both administrative and legislative processes.

54. We rule that, in this instance, despite the allegations of bias and conflict of interest against him, the PP being the specific and only officer authorised by law to sign the s. 418A certificate, may do so. His act cannot be impugned by reason of the imputed bias or conflict of interest. (see MOHD ZAINAL ABIDIN BIN ABDUL MUTALIB v DATO SERI DR. MAHATHIR MOHAMED, MINISTER OF HOME AFFAIRS & ANOR (1989) 3 MLJ 170)

… 56. With respect, we disagree. The rule of necessity is inapplicable if the optional routes as suggested by Hj. Sulaiman are real alternatives. In our view, there are no true alternatives to the powers conferred under s. 418A CPC. As said earlier, it is a special power that stands alone. This power is personal to the PP and he not apply to the court for a transfer. The doctrine of necessity therefore necessitates the PP to exercise that power.

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5 replies on “CoA’s Outline of Reasons in DSAI v PP (s418A Transfer Issue)”

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  2. what can we do? that’s also one of the reasons why shadow committee was formed.

    “It remains to be seen. I would be completely naïve to imagine that nothing will be done, no conspiracy, no harassment, no fabrication in this case.” said Anwar

  3. Yes sir, I remember 1998. Mtdhir promoted Gani dan Musa Hassan just because of the 'mattress'. Gani is a 'mattress' AG and Musa Hasan, the 'mattress' IGP.

    Yes, 1998 I still remember. The mattress was paraded in and out of court and was never kept in safe custody. The spermatozoa and seminal fluids found on the mattress could have belonged to Gani Patail or Musa Hasan. Gani Patail was actively involved as investigator and prosecutor.

    Ever wonder why it was never tended in court then?

  4. mattop,

    for visceral sodomy.

    gani and diploma cop are the best tag team. remember 1998?

  5. Stupid CA judges I would think. They say there is no true alternative to s.418A. 418A is to enable the case to be transferred to the High Crt. But it shld not be done at the whim and fancies of Gani Patail.

    I thought the alternative route to transfer the case to the High Crt is via sect.417. Sodomy case is like rape cases what. Every Session crt president is hearing it and there is no question of law of unusual difficulty that may arise.

    So the transfer is made to fix the correct High Crt judge to hear the case. With Komathy, the prosecution would not stand a chance since she is legally well versed and knowledgeable than most High Crt judges and has better judicial integrity. Wtih two negative medical rpts from Pushrawi and HUKL, what the heck these 'bastards' from the AG want to prosecute anyway.

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