updated version Jailed ex-deputy premier Anwar Ibrahim's leave to appeal to the Federal Court over the striking out of his RM100 million defamation suit against Prime Minister Dr Mahathir Mohamad was dismissed with costs this morning.

The country's highest court - in a unanimous decision by a three-member bench consisting of Chief Justice Mohamad Dzaiddin Abdullah, Chief Judge of Malaya Wan Adnan Ismail and federal judge Abdul Malek Ahmad - ruled that the test applied by High Court judge RK Nathan in dismissing the suit was proper.

"The trial judge has correctly addressed the issues of justification and qualified privilege raised by Mahathir in his defence," said Dzaiddin, who read the judgment.

Nathan struck out the suit in August 1999 on the grounds that it was frivolous, vexatious and an abuse of the process of the court.

Sheltered by defence

On Dec 9 last year, the Court of Appeal dismissed Anwar's bid to pursue the suit and upheld the High Court decision to strike it out.

The Court of Appeal held that Mahathir was sheltered by the defences of justification and qualified privileges.

Anwar filed the suit in January 1999, claiming that Mahathir at a press conference had falsely and maliciously accused him of committing an immoral act. He said that Mahathir knew his comments would be published locally and internationally.

In his statement of defence, Mahathir contended that he spoke the words as prime minister on an occasion of qualified privilege. He said he made the remark in relation to Anwar's suitability for the office he held, and after due inquiry and investigation.

Act in malice

In his reply, Anwar said the defence of qualified privilege was not open to Mahathir because he had acted maliciously by uttering and causing the offending words to be published and republished.

Anwar's counsel Karpal Singh told the court on Monday that Mahathir could not hide behind the defence of justification and qualified privilege after tarnishing Anwar's reputation.

He said that the wide publicity of the sodomy trials of Anwar's former speech writer Dr Munawar Ahmad Anees and Anwar's adopted brother Sukma Dermawan Sasmitaat Madja could not necessarily implicate the former deputy prime minister as being involved in an act of sodomy.

Both Munawar and Sukma pleaded guilty of "committing an act of gross indecency by allowing Anwar to sodomise them" in Sept 19, 1998 and were sentenced to a six-month jail term each. However, they later claimed that they were forced to fabricate evidence against Anwar.

According to Karpal, wide publicity over the case does not give Mahathir the defence of justification for defaming a person.

No prospect of success

To this, Dzaiddin said today that Nathan was correct in ruling that Mahathir was sheltered by a defence of justification for making comments on Anwar based on the convictions of Munawar and Sukma to the acts of gross decency.

"On qualified privilege, we also find the learned trial judge had applied the correct test and law to the facts and circumstances of the case," said Dzaiddin.

He also said that the panel felt that even if a leave was granted, Anwar would not have any prospect of success in the appeal.

"Having agreed with the reasons and the conclusion of the trial judge on the defence of justification and qualified privilege after applying the law to the factual matrix of the case, it is our provisional view that should leave to appeal be granted, Anwar would not have any prospect of success," said Dzaiddin.

Sacked for immorality

Anwar was sacked from the government by Mahathir in September 1998 on the grounds of immorality.

In April 1999 Anwar was jailed for six years for abuse of power and in August last year he was imprisoned nine years for sodomy, with the sentences to run consecutively.

Anwar had always maintained that Mahathir orchestrated a conspiracy to frame him because he was seen as a political threat. The government denied any plot, adding that Anwar received a fair trial.

Anwar is at present undergoing treatment for a slipped disc at Kuala Lumpur hospital where he has been hospitalised since last November.