The sodomy trial Anwar Ibrahim ought to be "struck out" because the jailed former deputy premier was denied a fundamental opportunity to file a fresh notice of alibi, said his lawyer Karpal Singh.

The lawyer said the denial of the opportunity, which is stated the Criminal Procedure Code, breached Anwar's fundamental liberty as guaranteed by Article 5 of the Federal Constitution.

He said that trial judge Justice Arifin Jaka ( photo ) was wrong to conclude that Anwar was not entitled to give a fresh alibi notice in view of the substantial amendment to the charge.

He was submitting in the appeal by Anwar who sought to set aside Ariffin's decision on Aug 8, 2000 which sentenced him to nine years in jail for sodomising Azizan Abu Bakar, the former driver of Anwar's wife Dr Wan Azizah Wan Ismail .

Anwar's co-accused, Indonesian Sukma Darmawan Sasmitaat Madja was also found guilty and sentenced to six years jail and four strokes of the rotan.

The appeal is being held before justices Pajan Singh Gill, Hashim Mohd Yusof and Richard Malanjum. If Anwar fails to obtain bail and set aside the conviction, he may have to remain in prison until 2009.

Notice of alibi

Karpal ( photo ) said Arifin erred when he dismissed the defence application for a 12-day postponement to prepare a fresh notice of alibi after the prosecution amended the date of the alleged offence from "May 1994" to "between January and March 1993".

He said the judge had misdirected himself when ruling that the amendment does not compel the defence to file another notice. The court had held that the notice submitted earlier by Sukma was still good for the amended charge.

"How can a notice of alibi which the second appellant (Sukma) had filed for a charge (allegedly committed) in 1992 be still good for a charge which states 1993? How could the judge have made such absurd conclusion?" Karpal asked.

"It is obvious that, come what may, the judge was determined to convict and for that, he was willing to disregard substantial procedures."

He also told the court that he was appalled with then lead prosecutor (now Attorney-General) Abdul Gani Patail's statement that "alibi defence is a sham defence" when the latter objected to the defence application for a postponement to file a fresh alibi notice.

Karpal also argued that the provision of the alibi notice under section 402(A) of the Criminal Procedure Code is o­ne that the court has no discretion to waive.

"The provision is mandatory in relation to the defence of alibi and if it is not complied with, the court ought to strike out the whole proceeding," he said.

Karpal also said Ariffin had failed to ensure justice and a fair trial to Anwar when he dismissed the defence application for the judge to disqualify himself on the ground that he was a business associate of Mirzan Mahathir, the prime minister's son.

Political assassination

Earlier, Anwar's lead counsel Christopher Fernando told the court that the trial judge erred when he failed to consider Anwar's defence of a political conspiracy to kill his political career.

He said there was enough evidence through witnesses like Azmin Ali, Rahim Dahlan @ Rahim King and Raja Kamarudin Raja Wahid @ Raja Kommado to show the "two levels of political assassination" against Anwar.

"The first level was to use Azizan and Ummi Hafilda Ali (who confessed to helping Azizan to highlight his allegations against Anwar) and spread false sexual-related stories. The second was to use the police to fabricate evidence (against Anwar)," said Fernando.

Anwar's testimony had revealed that politicians like Rafidah Aziz, Daim Zainuddin and Abdul Aziz Shamsuddin were desperate to oust Anwar, after he proposed amendment of the Anti-Corruption Act to allow for prosecution of crimes committed within a period of six years.

"In fact we tendered a copy of the charge sheets framed against Rafidah and signed by none other than my learned friend the Attorney-General Abdul Gani Patail," said Fernando.

The hearing continues on Monday.