PUTRAJAYA: There is no reason sufficient to remove a remark in a Federal Court judgement implying Datuk Seri Anwar Ibrahim has homosexual tendencies, the Federal Court heard.
Deputy Public Prosecutor Manoj Kurup argued that it was a comment made by then Federal Court judge Justice Abdul Hamid Mohamad in acquitting Anwar over the charge of sodomising Azizan Abu Bakar (Sodomy I) in 2004 which was part of the analytical process in decision-making.
"The comment was on the ingredients of the (sodomy) charge. In coming to the decision to acquit or convict (a person), the judge has to analyze the evidence. There is no reason sufficient to expunge (the comment) ," DPP Manoj submitted before a five-man panel chaired by Chief Judge of Malaya Justice Zulkefli Ahmad Makinudin.
With him in the panel are Federal court judges Justice Zaleha Zahari, Justice Jeffrey Tan Kok Wha, Justice Abu Samah Nordin and Justice Ramly Ali.
DPP Manoj said that there was sufficient evidence on record to justify the comment. "There were no criticism in it, no strictures and no disparaging comments. The paragraph merely contained a 'finding' based on evidence found in the appeal record. On that score alone, this application ought to be dismissed as an attempt to change a valid finding made by a court of law based on evidence," he said.
He said if the review was allowed it would caused more people to make similar applications to "edit" the judgments to suit their respective purposes."That, surely, would tantamount to dictating to the courts how to write judgments, therefore, interfere with judicial independence. It cannot be allowed," he added.
Anwar had filed a review application on March 29 to expunge part of Justice Abdul Hamid's judgment dated Sept 2, 2004.
Anwar's lead counsel Datuk Sulaiman Abdullah argued that the remarks were wholly unnecessary, not essential and irrelevant in the judgment.
"He was not charged for homosexuality. Such a statement is not necessary for the determination of the case and should not remain (in the judgment)," he said.
Sulaiman argued that it was injustice for Anwar as the people who were sued for defaming him has been using the remark to justify their actions.
"It is obvious prejudice to the applicant," he said, adding that the court has the right and inherent jurisdiction to remove the remark to prevent injustice.
"The judge had made a sweeping and wholly unsubstantiated statement that effectively found the appellant to be a homosexual and guilty of homosexual offences even though it is trite law that the courts are only concerned with the charge at hand and whether the prosecution had been able to prove their case beyond a reasonable doubt," he said.
Sulaiman argued that the whole administration of law and order in the courts would be brought into disrepute if judges were allowed to make remarks that essentially declared that the accused person was a serial offender and had in fact committed the offence as charged but had to be acquitted due to lack of evidence.
Justice Zulkefli said the panel need time to consider the submissions saying that "we do not want to rush" and adjourn the decision to a date to be fixed.
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