Thursday 28 Mar 2024
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PUTRAJAYA (Nov 2): Opposition leader Datuk Seri Anwar Ibrahim himself had admitted that then Umno Youth chief Khairy Jamaluddin Abu Bakar's remark that he 'main belakang' at a political ceramah in 2008 also has a lesser connotation compared with what the High Court found to be defamatory.

Khairy's counsel Tan Sri Muhammad Shafee Abdullah said his client, who is now the Health Minister, told a three-member Court of Appeal bench on Tuesday that the PKR president had admitted this in his testimony for the defamation trial against the minister.

“Anwar himself admitted in his testimony the lesser meaning of those complaint words, that political parties playing each other out bring a different or non-defamatory connotation to what the veteran politician is claiming in his statement of claim.

“We say the High Court was wrong or erred in not taking this into consideration when it found that Khairy had defamed the PKR leader. Khairy himself admitted under oath when cross-examined that what he said does not have any sexual connotation as political parties cannot sodomise each other. It does not mean that (the sexual allegation),” the senior lawyer said.

Pointing to both Anwar's and Khairy's testimonies at the High Court, Shafee said the court was wrong in finding his client had defamed the former deputy prime minister as both the plaintiff (Anwar) and the defendant (Khairy) themselves admitted the complaint words also carried the lesser connotation.

“Khairy said under cross-examination and when I re-examined him that the context in what he said to those complaint words was a marriage of convenience between political parties. He reiterated during cross-examination that one cannot sodomise political parties.”

The senior counsel added that the High Court was wrong in considering defamation was committed when what was said itself carries a lesser different meaning, which was not defamatory.

“The High Court never took into account that these words also carry a non-defamatory or lesser defamatory meaning to what is alleged,” he said.

For these reasons, Shafee, who was submitting in New York via online proceedings, said the appellate court should set aside the High Court decision, and find the minister had not defamed the PKR president.

He told the Court of Appeal bench this in the long-standing appeal of the 2008 case.

Justice Datuk Lee Swee Seng led the bench, whose other members are Justices Datuk Darryl Goon Siew Chye and Datuk Ghazali Cha.

High Court ordered KJ to pay RM150,000 damages to Anwar

On Sept 29, 2017, Anwar won his civil suit against Khairy. The former Umno Youth chief was ordered by the High Court to pay RM150,000 in damages, with another RM60,000 as costs for remarks he made in 2008.

Shafee further said the High Court judge also took into consideration the audience at the ceramah had laughed after Khairy's remark but his client replied that he could not control the thoughts of the audience.

While Justices Lee and Goon pointed out that Khairy's statement at the political ceramah taken as a whole could also mean the sexual element alleged by Anwar, when the minister was referring to 'mutaah' (marriage via syiah way) that had sexual connotations, Shafee argued that the court should not over analyse those words.

“There is no far-reaching impact to the public. Sodomy does not mean homosexual under the proper context,” he added.

At the same time, Shafee also said the court should also take into consideration the Federal Court judgement in 2004 in Anwar's first sodomy case by former Federal Court judge Tun Abdul Hamid Mohamad, who later become CJ, which while acquitting the politician of sodomy, had stated that the court believed the incident (sodomy) did actually happen.

He said his client also argued there was justification in what he had said based on that Federal Court judgement. What's more, he added that Justice Abdul Hamid's judgement still stands despite Anwar's application to review it in 2017.

“Our main defence that the meaning given by the plaintiff (Anwar) is such and such and we are justified (in saying this) due to his previous conviction, his purported homosexual behaviour. All these are admissible by virtue of Section 43 of the Evidence Act 1950.

“Perhaps it is timely that the bench also considers the provisions in Section 43,” he implored.

Section 43 stipulates judgements, orders or decrees other than those mentioned in Sections 40, 41 and 42 are irrelevant unless the existence of such judgement, order or decree is a fact in issue or is relevant under some other provision of this Act.

Shafee said judgements are considered opinions of the court, and it shows that such an opinion (sodomy) exists.

This resulted in Justice Goon interjecting that it does not mean that it is a proven point.

Shafee responded that then the court should consider this as partial justification based on the common law principle, which the High Court judge had himself failed to consider.

As the senior lawyer concluded his submission, he applied to the appellate court for the case to continue on another day as it was already early morning in New York and he was suffering from jet lag from his trip there on Oct 29.

After a short deliberation, Justice Lee allowed the case to be postponed and fixed Jan 17 for Anwar's counsels Datuk Seri Gopal Sri Ram and J Leela to respond to the submissions and hear Shafee's reply.

Edited ByLam Jian Wyn
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