There is no evidential basis to justify a remark made by a Federal Court judge in his judgment that Datuk Seri Anwar Ibrahim had homosexual tendencies, the Federal Court here heard Monday.
Counsel Datuk Sulaiman Abdullah, who is representing the opposition leader, submitted that the remark should be expunged from the majority judgment written by then-Federal Court judge Tun Abdul Hamid Mohamad when acquitting Anwar on a charge of allegedly sodomising his family's driver.
He said the impugned paragraph was unnecessary and irrelevant in the judgment as the paragraph was Abdul Hamid's personal remark against Anwar and did not form the main principle of the case.
"The impugned paragraph was all the more unfair and unreasonable since the personal comment was made without taking into account, Anwar's evidence during the trial," he added.
Sulaiman said the impugned paragraph had grossly tarnished Anwar's reputation and continuously caused serious injustice and damage towards his reputation since it had been constantly misused and abused, repeated and widely published and used as justification to refer and condemn Anwar as a homosexual or sexual deviant to the public.
He said every time the opposition leader filed a defamation suit to clear his name, opponents would rely on the judgment as their defence.
He said the paragraph could be construed as disparaging, unwarranted and biased as the Federal Court judge essentially declared that Anwar was a serial offender and had in fact, committed the offence as charged but he had to be acquitted due to lack of evidence.
Sulaiman was submitting in a review application brought by Anwar in a bid to expunge the paragraph "we find evidence to confirm that the appellants (Anwar and Sukma Darmawan Sasmitaat Madja) were involved in homosexual activities and we are more inclined to believe that the alleged incident at Tivoli Villa did happen, sometimes..." in the majority judgment.
On Sept 2, 2004, the Federal Court led by Abdul Hamid, who later became the chief justice and subsequently, retired in 2008, had in a 2-1 majority decision, freed Anwar on a charge of allegedly sodomising Azizan Abu Bakar.
The Federal Court had overturned a high court decision which had sentenced Anwar to nine years' imprisonment.
The same Federal Court panel had also overturned the conviction and six-year jail sentence on Sukma Darmawan who is Anwar's adopted brother and was jointly tried with him (Anwar) for allegedly sodomising Azizan at Tivoli Villa in Kuala Lumpur in 1994.
Deputy Public Prosecutor Manoj Kurup, however, argued that the court was entitled to make comments on Anwar's conduct as there was evidence in the appeal record to justify the remarks.
"The paragraph merely contained a 'finding' based on evidence found in the appeal record," he said, adding that Anwar's application ought to be dismissed as it was an attempt to change a valid finding made by a court of law based on evidence.
He said Anwar's application which was filed nine years after his acquittal, amounted to editing the judgment.
Manoj said if Anwar was allowed to seek remedy in the court, it would open the floodgates and people might move to make similar applications to "edit" judgments to suit their purposes.
This, he said, would be tantamount to dictating to the court on how to write judgments and interfere in judicial independence.
A five-member panel led by Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinudin deferred their decision to another date as they require time to consider the arguments put forward by Sulaiman and Manoj.
Counsel Datuk Sulaiman Abdullah, who is representing the opposition leader, submitted that the remark should be expunged from the majority judgment written by then-Federal Court judge Tun Abdul Hamid Mohamad when acquitting Anwar on a charge of allegedly sodomising his family's driver.
He said the impugned paragraph was unnecessary and irrelevant in the judgment as the paragraph was Abdul Hamid's personal remark against Anwar and did not form the main principle of the case.
"The impugned paragraph was all the more unfair and unreasonable since the personal comment was made without taking into account, Anwar's evidence during the trial," he added.
Sulaiman said the impugned paragraph had grossly tarnished Anwar's reputation and continuously caused serious injustice and damage towards his reputation since it had been constantly misused and abused, repeated and widely published and used as justification to refer and condemn Anwar as a homosexual or sexual deviant to the public.
He said every time the opposition leader filed a defamation suit to clear his name, opponents would rely on the judgment as their defence.
He said the paragraph could be construed as disparaging, unwarranted and biased as the Federal Court judge essentially declared that Anwar was a serial offender and had in fact, committed the offence as charged but he had to be acquitted due to lack of evidence.
Sulaiman was submitting in a review application brought by Anwar in a bid to expunge the paragraph "we find evidence to confirm that the appellants (Anwar and Sukma Darmawan Sasmitaat Madja) were involved in homosexual activities and we are more inclined to believe that the alleged incident at Tivoli Villa did happen, sometimes..." in the majority judgment.
On Sept 2, 2004, the Federal Court led by Abdul Hamid, who later became the chief justice and subsequently, retired in 2008, had in a 2-1 majority decision, freed Anwar on a charge of allegedly sodomising Azizan Abu Bakar.
The Federal Court had overturned a high court decision which had sentenced Anwar to nine years' imprisonment.
The same Federal Court panel had also overturned the conviction and six-year jail sentence on Sukma Darmawan who is Anwar's adopted brother and was jointly tried with him (Anwar) for allegedly sodomising Azizan at Tivoli Villa in Kuala Lumpur in 1994.
Deputy Public Prosecutor Manoj Kurup, however, argued that the court was entitled to make comments on Anwar's conduct as there was evidence in the appeal record to justify the remarks.
"The paragraph merely contained a 'finding' based on evidence found in the appeal record," he said, adding that Anwar's application ought to be dismissed as it was an attempt to change a valid finding made by a court of law based on evidence.
He said Anwar's application which was filed nine years after his acquittal, amounted to editing the judgment.
Manoj said if Anwar was allowed to seek remedy in the court, it would open the floodgates and people might move to make similar applications to "edit" judgments to suit their purposes.
This, he said, would be tantamount to dictating to the court on how to write judgments and interfere in judicial independence.
A five-member panel led by Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinudin deferred their decision to another date as they require time to consider the arguments put forward by Sulaiman and Manoj.
