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Wednesday, March 26, 2014

Anwar fails to expunge ex-CJ's Sodomy I remarks

Anwar Ibrahim has failed in his bid to expunge certain paragraphs in the majority 2004 judgment acquitting him of the first sodomy charge, for which he was sentenced to nine years' jail, but which also stated unequivocally that the incident had taken place.

A five-member bench of the Federal Court unanimously dismissed Anwar's application this morning.

Chief Judge of Malaya Justice Zulkefli Ahmad Makinuddin said in the written judgment that the then Chief Justice Abdul Hamid Mohamad was entitled to hold that view.

"We find that it is not necessary to disturb the 2004 judgment and this may be tantamount to interfering with the judicial process, resulting in floodgates to be opened," Justice Zulkefli said.

Reacting immediately, Anwar cried out in the courtroom: "Allah! It is like another judgment! Why is it that anything against Anwar will result in this?"

The other members of the panel are Justices Zaleha Zahari, Jeffrey Tan Kok Wha, Abu Samah Nordin and Ramly Ali.

In his written judgment in 2004, Justice Abdul Hamid (left), then with the Federal Court, had said: "Even through reading the appeal record, we find evidence to confirm that the appellants were involved in homosexual activities and we are more inclined to believe that the alleged incident at Tivoli Villa did happen some time.

"This court as a court of law may only convict the appellants if the prosecution has successfully proved the alleged offences as stated in the charges beyond reasonable doubt, on admissible evidence and in accordance with established principles of law.

"We may be convinced in our minds of the guilt or innocence of the appellants, but our decision must only be based on the evidence adduced and nothing else..."

Anwar had sought to expunge these paragraphs as many politicians have used these remarks against him, resulting in his filing several defamation suits and they used this portion of the Federal Court judgment as their defence.

Anwar has been found guilty on the Sodomy II charge against him when the Court of Appeal overturned the Kuala Lumpur High Court's decision earlier this month and sentenced him to five years' jail.

Enough evidence for judge to make comment

The Federal Court, Justice Zulkefli said, believes there was sufficient evidence on record to justify the Justice Abdul Hamid's comment in his 2004 written judgment.

“We agree that the comment is part and parcel of the analytical process undertaken by the learned judge in arriving at the decision which the majority judgment did.

“In our view, the conclusion arrived at by the majority judgment in the impugned paragraph was in fact based on evidence found in the appeal record. It therefore cannot be termed as a personal opinion of the judge who delivered the decision.

“It is clear the majority decision was based wholly on the fact that the date of the offence had not been proven. It is noted that at no time did the majority judgment say that the sexual offence did not occur.

“We are of the view the majority judgment accepted that the sexual incident forming the crux of the charge did in fact occur but were doubtful as to when it took place,” Justice Zulkefli said.

There was also nothing wrong in Justice Abdul Hamid's finding and that he was entitled to make the remark as he was referring to an ingredient of the charge.

Anwar was represented by Sulaiman Abdullah, J Leela and Latheefa Koya, while DPP Manoj Kurup appeared for the respondents,

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