The Remark Remains

PUTRAJAYA: PKR de facto leader Datuk Seri Anwar Ibrahim (pix) today failed in his attempt to expunge a remark in a Federal Court judgement that implied he has homosexual tendencies.

A five-member Federal Court panel, chaired by Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinuddin, unanimously dismissed Anwar's review application to have the remark removed from the majority judgment delivered nine years ago by the then Federal Court judge Tun Abdul Hamid Mohamad.

Abdul Hamid, who later became the chief justice and retired in 2008, had in a 2-1 Federal Court majority decision on Sept 2, 2004, freed Anwar on a charge of having sodomised his family's driver, Azizan Abu Bakar, at the Tivoli Villa in Kuala Lumpur in 1994.

In delivering his decision today, Justice Zulkefli said Abdul Hamid was perfectly entitled to make the remark when he delivered the majority judgement as there was sufficient evidence on record to justify the comment.

He said the majority judgement had accepted that the sexual incident did occur but there was a doubt as to when it took place.

Justice Zulkefli said the Federal Court's majority decision to acquit Anwar was based on the fact that the date of the offence had not been proven and at no time did the court hold that the sexual offence did not occur.

"In our view, the conclusion arrived at by the majority judgement in the impugned paragraph was in fact based on evidence found in the appeal record," he said.

"It, therefore, cannot be termed as a 'personal opinion' of the learned judge who delivered the majority decision," he added.

Anwar had said the impugned paragraph in the majority judgement should be expunged because it was Abdul Hamid's personal remark and was not the basis of the majority judgement.

The remark he sought to expunge was "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 ...".

Sukma Darmawan is Anwar's adopted brother who was jointly charged with him on the sodomy charge. Justice Zulkefli also said that the Federal Court agreed with Deputy Public Prosecutor Manoj Kurup's submission that the remark was part and parcel of the analytical process undertaken by Abdul Hamid in arriving at the majority decision.

He said if the court allowed Anwar's application, it may open a floodgate for dissatisfied parties to make similar applications to edit judgements of the courts to suit their respective purposes.

"In our considered view this would tantamount to interfering with the judicial process, which should not be allowed," said Justice Zulkefli. He said Anwar's application was not a fit and proper case for the Federal Court to exercise its inherent powers under Rule 137 of the Rules of the Federal Court 1995 to make an order to expunge the remark.

The other four judges presiding on the panel are Federal Court judges Datin Paduka Zaleha Zahari, Datuk Jeffrey Tan Kok Wha, Datuk Seri Abu Samah Nordin and Datuk Ramly Ali. – Bernama