PUTRAJAYA, Dec 2 — The homosexual reference to Datuk Seri Anwar Ibrahim is unjust and should be purged from court records after the politician was acquitted of his Sodomy I charge in 2004, his lawyer argued before a five-judge panel today.
Counsel Sulaiman Abdullah argued that the reference, made in the top court’s majority judgment on the acquittal, had been grossly abused by Anwar’s political opponents to attach the stigma of being a homosexual even after the PKR adviser was absolved of the charge.
“It is totally uncalled for to make a mention of homosexuality outside the ambit of the charge,” he said while presenting his submissions before a five-member bench chaired by Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinuddin.
“You can’t say ‘Oh yes, he’s a homosexual anyway, but he is not guilty of this charge’. I submit that this is what’s wrong with this judgment,” he added.
Anwar submitted his application to expunge the offending reference just before the 13th General Election, on the grounds that it has been used by his political opponents to claim that he is tainted.
The former deputy prime minister was acquitted of his first sodomy charge after the Federal Court ruled two to one in Anwar’s favour on September 2, 2004.
Justice Datuk Abdul Hamid Mohamad, who chaired the panel, however included in the majority judgment that they were inclined to believe that Anwar and his adopted brother Sukma Darmawan Saasmitaat, who was jointly charged, had engaged in sodomy.
“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,” read the section of the judgment that Anwar is seeking to remove.
Sulaiman today maintained that the courts cannot come up with a ruling based on general evidence — which in this case make a reference to homosexuality — when it is not even admissible as evidence in direct relation to the charge.
He submitted that a judge also cannot make a value judgment under any circumstance when considering a case, and is duty bound to limit the scope of his judgment to the admissible evidence in support of a claim.
“It is like that old story of the jury saying ‘You are not guilty of stealing the cow, but you have to give back the cow’. This just shows the ridiculousness of the situation.
“If this court allows this to stand, it has the tendency to bring the whole administration of the law into disrepute,” Sulaiman said.
Senior federal counsel Manoj Kurup countered that the apex court was not wrong in including the passage in its 2004 majority ruling, saying that the element of homosexuality was “one of the ingredients” in proving the sodomy charge.
He also argued that there is no basis for Anwar’s application, as any attempt to challenge a court judgment must be based on the rule of law and not merely on the contents of a written judgment.
Both sides have completed their submissions, and will be informed at a later about when the Federal Court will deliver its judgment.
In 1999, Anwar and Sukma were jointly charged in the High Court for allegedly sodomising Azizan Abu Bakar between January and March 1994. Azizan was at the time the driver for Anwar’s wife, Datuk Seri Wan Azizah Wan Ismail.
Anwar was found guilty by the High Court and sentenced to nine years’ jail, a penalty that was to run consecutively after an earlier six-year jail term for corruption.
The opposition leader is also currently involved in a second sodomy case, after the government filed an appeal against his acquittal for allegedly sodomising a former political aide, Mohd Saiful Bukhari Azlan, now aged 28.
Anwar was cleared last year of sodomising Saiful at the Desa Damansara condominium on June 26, 2008.
