Nor Bee Ariffin said she was disqualifying herself as she was the High Court judge who had dismissed a judicial review application by Anwar and his family in 2016 over the Pardons Board’s refusal to grant him clemency for allegedly sodomising his ex-personal aide Saiful Bukhari Azlan.
“The same point is going to be raised in this appeal and in the interest of justice, I will not sit,” she said.
Joining her in the three-member bench were S Nantha Balan and Leng Heng Cheong.
Anwar and his family filed the judicial review in 2015 but the following year Nor Bee held that the power of pardon was non-justiciable (cannot be questioned in court).
The recusal application came about after lawyer Mohamed Haniff Khatri Abdulla, counsel for respondent Mohd Khairul Azam Abdul Aziz, brought it to the attention of the court.
A new appeal date will be fixed by the court registry.
Last September, Judge Akhtar Tahir threw out the applications of the government and Anwar to strike out the lawsuit filed against them by Khairul, who is also a lawyer.
Akhtar ruled that the application was not a clear cut case to be summarily dismissed under the rules of court.
“Evidence might need to be called before the court. The second defendant (Anwar) also has the right to cross-examine the witnesses,” he had said.
Khairul is seeking a declaration that the pardon given to the opposition leader in 2018 was not in accordance with the law as the Federal Territories Pardons Board was not legally constituted at the time.
Khairul claimed the composition of the Pardons Board was not in accordance with Article 42 (5) to advise the King to pardon Anwar.
He said then prime minister Dr Mahathir Mohamad had announced on May 11, 2018, two days after Pakatan Harapan came to power, that the King had granted a full pardon to Anwar.
Khairul said the pardon came just before a Cabinet was formed and this was in violation of Articles 42 (4) and (5) of the Constitution.
He said the board also did not exist at that time as a board member – then attorney-general Mohamed Apandi Ali – was on garden leave and the federal territories minister had yet to be appointed.
He also said Apandi had not assigned the solicitor-general to represent him at the meeting.
Article 42 (5) states that the Federal Territories Pardons Board membership should consist of the attorney-general, the minister and at least three others to advise the King.
Anwar told a press conference on May 16, 2018 that the King had granted him full pardon for his three convictions – one for abuse of power and two for sodomy – on the basis that there was a “miscarriage of justice”.
He said the pardon was also on the basis that there was a conspiracy to condemn him and “assassinate” his political character.