LJ in his letter, Court believed in Anwar's sexual shenanigans , tried to rebut Adcin's letter, Mahathir exposed with Anwar's acquittal , by stating that:

'Adcin might be surprised to find, if he actually reads the Sept 2 judgment of the Federal Court, that the majority judges (the ones who acquitted Anwar and who are now hailed as the purest judges in Malaysia) do not agree with him.

'This is because they pronounced as follows: 'We find evidence to confirm that the appellants (Anwar and Sukma) were involved in homosexual activities and we are more inclined to believe that the alleged incident at Tivoli Villa did happen.'

'Remember that Anwar and Sukma were alleged to have sodomised driver Azizan Abu Bakar at the Tivoli Villa condominium. The judges did not dispute that allegation.

'What they did find and so the reason for the acquittal was that the prosecution did not prove beyond a reasonable doubt that the incident took place on the dates stated in the charge sheets.'

The above statements, indeed, contain several confusions that need clarification. I appreciate LJ's effort to understand the Federal Court's judgment, but then, LJ should be careful not to misinterpret it.

In reading a judgment, several skills need to be developed and mastered. For those who are equipped with legal knowledge, it is a matter of distinguishing ratio from obiter, proof from evidence, etc.

Hereby I lay down relevant passages of the judgment which might have led LJ to get confused and the explanation thereto. This explanation will focus on two things. First, did Anwar sodomise Azizan at other times or dates not stated on the charge sheet and second, has it been proven that Anwar is a homosexual?

Did Anwar ever sodomise Azizan or not, at other times or dates not stated on the charge sheet?

The court said:

' ... even if it is proved that the incident did happen but if it is not proved 'when', in law, that is not sufficient ...'.

The phrase 'even if' is normally used in legal judgments when judges make a hypothesis. 'Even if it is proved' does not mean that it is proved. If the court was of the intention of upholding the proof that the incident did happen, then the court would have used these words:

' ... even though it is proved that the incident did happen but if it is not proved 'when', in law, that is not sufficient...

Is it proven that Anwar is a homosexual?

i. The court said:

' ... Tun Haniff Omar's evidence , for example, regarding the conduct of the first appellant when told to stop his wayward activities i.e. he did not protest, at the most, only supports the first appellant's homosexual activities, not the specific charge...'.

Evidence is different from proof. Remember that. Evidence is nothing unless it is proven. Parties to legal proceedings may provide massive evidence, but then the trier of fact and the trier of law, i.e the judge, will have to determine the issue of relevancy and admissibility, weigh the evidence and then decide whether it is proved or not.

If the court was of the intention of upholding that Haniff's evidence amounted to proof, then the court would have used these words:

'... Tun Haniff Omar's evidence, for example, regarding the conduct of the first appellant when told to stop his wayward activities i.e. he did not protest, at the most, only proves the first appellant's homosexual activities, not the specific charge....

ii. The court said:

' ...while the testimonies of Dr Mohd Fadzil and Tun Haniff and the conduct of the first appellant confirm the appellants' involvement in homosexual activities, such evidence does not corroborate Azizan's story that he was sodomised by both the appellants at the place, time and date specified in the charge.'

Again, if the court was of the intention of upholding that Mohd Fadzil's and Haniff's evidence amounted to proof, then the court would have used these words:

'...while the testimonies of Dr Mohd Fadzil and Tun Haniff and the conduct of the first appellant prove the appellants' involvement in homosexual activities, such evidence does not corroborate Azizan's story that he was sodomised by both the appellants at the place, time and date specified in the charge.'

iii. The court said:

' ...To summarise our judgment, even though reading the appeal record, 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, sometime, this court, as a court of law, may only convict the appellants if the prosecution has successfully proved the alleged offences as stated in the charges, beyond reasonable doubt, on admissible evidence and in accordance with established principles of law. We may be convinced in our minds of the guilt or innocence of the appellants but our decision must only be based on the evidence adduced and nothing else ... '.

I believe that some might have been led to think, after reading the above passage, that the judges who acquitted Anwar feel that he is not clean, and that his acquittal was merely on a technicality.

But then, one should bear in mind that judges cannot import personal emotion and belief into their judgment. If it is however imported, then such words shall be regarded as obiter dicta . If the judges were of the intention of upholding the proof that the sodomy incident did happen, then the judges would have used these words:

" ...To summarise our judgment, even though reading the appeal record, we find evidence which proves that the appellants were involved in homosexual activities and we undoubtedly believe that the alleged incident at Tivoli Villa did happen, sometime, this court, as a court of law, may only convict the appellants if the prosecution has successfully proved the alleged offences as stated in the charges, beyond reasonable doubt, on admissible evidence and in accordance with established principles of law. We are undoubtedly convinced in our minds of the guilt or innocence of the appellants but our decision must only be based on the evidence adduced and nothing else...' .

I hope LJ would find the above explanation useful.

The writer is attached to the Faculty of Law, Universiti Kebangsaan Malaysia.