The prosecution's contention that there is a possibility for jailed ex-deputy premier Anwar Ibrahim to commit an offence if he is freed on bail is 'unfair and scandalous', lawyer Karpal Singh told the Court of Appeal today.

He said the contention was a bare statement and urged the court to expunge it as there is no evidence to show that Anwar may fall foul of the law if bail is granted.

"This argument is scandalous and ought to be expunged. No evidence had been placed (by the prosecution) to show the applicant would embark on a spree of commission of offence if bail is given. They are being unfair to the applicant," said Karpal.

He was replying the affidavit of deputy public prosecutor Tun Abdul Majid Tun Hamzah which claims that since the future cannot be predicted, there is no guarantee what the ex-deputy premier will do.

The affidavit was filed on behalf of the Attorney-General's Chambers in support of the prosecution's objection against Anwar's and his adopted brother Sukma Darmawan Sasmitaat Madja's applications for bail.

The duo are seeking bail pending their appeals against the Kuala Lumpur High Court's decision to convict them for sodomising Azizan Abu Bakar, the former driver of Anwar's wife Dr Wan Azizah Wan Ismail.

In 2001, Anwar was jailed nine years while Sukma received six years' imprisonment and four strokes of the rotan.

The Court of Appeal had rejected their appeals last April.

Remained steadfast

Urging Justices Richard Malanjum, Pajan Singh Gill and Hashim Mohd Yusof to grant bail, Karpal assured the court that there is no likelihood for the ex-deputy premier to abscond.

"In any event why would he do that? The man stood his ground against the prime minister in 1998 who then expelled him (from Umno and the cabinet) and made public accusations against him. Yet, he did not run away.

"He was charged, convicted twice (sodomy and corruption) and he still remained steadfast. He will not abscond. He is a man who will fight till the end," said

The lawyer also reminded the court that its affirmation of the High Court's decision (to convict the two) is not final as there is another avenue at the Federal Court.

"A man is presumed innocent until proven guilty - this is a constitutional right. So until a final decision is made at the Federal Court, the applicants should not be denied their liberties," he said.

Visits revealed

Meanwhile, Karpal also questioned the prosecution's move to reveal the number of times Anwar's lawyers and family had visited him in the Sungai Buloh prison.

"So what is the prosecution trying to say? There was a trial, no bail was allowed. We (lawyers) had no alternative but to go there (prison) for instructions. I wish to point out that we now face certain restraints to meet him. We have to get clearance all the way to the (prison's) superintendent before we can see him," he said.

The prosecution had earlier revealed that Anwar was visited a total of 332 times by his lawyers and 174 times by his family members from January 2001 to last April.

He urged the court to consider the fact that their appeals contains merits as the appellants had raised a novel issue involving laws of the issuance of the notice of alibi which questioned the legality of the proceedings at the High Court.

He said the court must also consider Anwar's ill health as the ex-deputy premier has been suffering from a prolapsed disc which was allegedly aggravated after being assaulted while under police custody in 1998.

No jurisdiction

In his reply, Attorney-General Abdul Gani Patail said the Court of Appeal has no jurisdiction to entertain the bail applications after it has convicted the two.

He said since the appeals are pending before the Federal Court, only that court could grant bail and a stay of execution.

"The court is structured and that is where we retain our integrity. Each court must play its respective role and within its jurisdiction," he said.

Abdul Gani also defended Tun Majid's affidavit, stating that it was a fair statement.

"Nobody knows what the future holds for us. This is fact. Only God knows what is going to happen. We are not saying that he (Anwar) will commit an offence but neither did we say that he will not. We are saying that there is no guarantee on this point," he said.

Not applicable

On revealing the frequency of visits, the attorney-general said this was done to show that despite his incarceration, Anwar was not denied visits from his lawyers and family.

He also argued that the presumption of innocence until proven otherwise is not applicable in this case as Anwar and Sukma have been convicted and the decision affirmed.

"That presumption cease to exist after the man is found guilty and that decision must be accepted as a good decision until it is set aside. So the circumstances has changed," he said.

He disagreed with the contention that the prosecution must furnish evidence why bail should be refused, adding instead that it is the applicants who must show special circumstances to justify the bail application.

He further argued that the law states that "no bail shall operate as a stay of execution on any judgment appealed against".

"However the court may use its discretion to issue bail after it is convinced that the applicants have shown special circumstances to be given bail," he said.

Asked by Justice Malanjum what standard of proof the court should adopt in determining the weight of the applicant's special circumstances, Abdul Gani said: "By the mere word of special circumstance, it (the standard) has to go beyond the balance of probabilities."

"But I will not say that it should be beyond reasonable doubt. I will not be doing my duty if I were to say that," he continued.

Abdul Gani also said that merits of appeal is not a special reason for the court to consider bail.

"If the court grants bail on this reason, it shows that it has no confidence in its own decision," he said.

Hearing resumes tomorrow.