Anwar fails in yet another bid set aside Sodomy II conviction

The High Court in Kuala Lumpur today dismissed former opposition leader Anwar Ibrahim's suit filed in a fresh bid to set aside his second sodomy conviction which was upheld by the Federal Court and for which he was jailed five years.

Justice Nik Hasmat Nik Mohamed in her decision allowed the application by the government to strike out of the suit saying Anwar's application to set aside the conviction and sentence was “frivolous, vexatious and an abuse of the court process”.

Anwar had sought to set aside his conviction and sentence on the grounds that the government had relied on fraudulent testimony to secure his conviction.

Justice Nik Hasmat ordered Anwar to pay RM5,000 costs.

The judge described Anwar's application to set aside the conviction and sentence as a backdoor approach.

"It is a veiled attempt by using a civil procedure to set aside the conviction where the High Court had acquitted him and the Court of Appeal had reversed this with the Federal Court upholding the judgment and conviction," she said.

Justice Nik Hasmat said as Anwar claimed fraud, he should have named the officer or person who committed it.

"This is a requirement under the Government Proceedings Act if the claim is made against a public officer," she said.

Hence, she said, the action filed by Anwar was not sustainable on the face of this case itself where such particulars should be made in the statement of claim.

"On the face of the claim, this application should be dismissed although the plaintiff is permitted to make the claim under Section 44 of the Evidence Act.

"This is akin to revisiting the conviction. You have to name those who allegedly committed fraud," she said.

Based on this, Justice Nik Hasmat said she need not go to the next stage to provide a full hearing for the suit.

Anwar, 69, had launched a fresh attempt to overturn his conviction for sodomy by filing the application on April 17 last year claiming that his conviction resulted from perjured evidence as the main prosecution witness Mohd Saiful Bukhari Azlan was untruthful.

According to documents filed in the High Court, Anwar claimed the government knew about Saiful's alleged perjured evidence and in view of this, he wanted his conviction and sentence by the Court of Appeal and Federal Court to be set aside.

Anwar named the Malaysian government as defendant.

The application, filed by law firm Daim and Gamany, follows a failed bid in the Federal Court on Dec 14 last year for a review of his conviction and a five-year jail sentence.

Following his conviction, the PKR de facto leader vowed that the decision was not the end of the road for him. Anwar has already served more than two years of his jail sentence and is due to release this year.

Anwar claimed in his statement of claim that the government had fabricated evidence in the form of a DNA sample, which he claims was used to support evidence from Saiful.

He further suggested the government had fraudulently and had the intent to injure him by placing Saiful (below) as a truthful witness and that the evidence against him was perjured.

Anwar further alleged that the government, through its agents, Saiful and other individuals known to the government, had acted concertedly to place Saiful as a truthful complainant and produced him (Saiful) in the trial and relied on his false testimony to injure him and his reputation.

He further claimed that Saiful's evidence was perjured, with the government's knowledge that the sodomy act, as claimed by Saiful, did not take place.

Following the purported fraud, the Court of Appeal judgment and the affirmation by the Federal Court are therefore null and void and should be set aside under Section 44 of the Evidence Act, Anwar said.

He sought for two judgments - the Court of Appeal's on March 7, 2014, and the Federal Court's on Feb 10, 2015 - be set aside on fraud and that he be released immediately.

He further sought costs and other relief deemed necessary by the court.

Anwar also filed another application last July in which he claimed that RM9.5 million was paid to senior lawyer Muhammad Shafee Abdullah who was the special prosecutor in his second sodomy trial.

This application, too, has been dismissed by the High Court.

Lawyers N Surendran and Latheefa Koya for Anwar told reporters after the proceedings today that they would appeal today's decision as they did for the earlier decision on the allegation made against Shafee which was now pending at the Court of Appeal.

"An innocent man is being jailed as recognised worldwide," Surendran said. -Mkini