In an unprecedented move, jailed ex-deputy premier Anwar Ibrahim will be filing an application to the Court of Appeal to review its own decision in dismissing his appeal against a sodomy conviction which he described as ' flawed ' .

In addition to adopting the normal practice of appealing to the Federal Court, Anwar planned to take the decision made by the appellate court's judges Pajan Singh Gill (now a federal court judge), Richard Malanjum and Hashim Yusoff, to another panel of judges in the same court "to correct the wrong decisions".

In a petition of appeal which was filed by his lawyer Sankara Nair at the Federal Court registry yesterday, Anwar claimed that the Court of Appeal has the power to re-open an appeal which it had already determined to avoid real injustice in exceptional circumstances.

Anwar's latest legal move followed an appeal filed in the Federal Court - the country's highest court - yesterday against the appellate court's decision to uphold the High Court's conviction of his sodomy charge.

The extraordinary move, if accepted by the appellate court, would mean that the Court of Appeal's hearing to review its own decision to dismiss Anwar's sodomy appeal will take precedent to the Federal Court appeal.

Strong legal grounds

Sankara told malaysiakini that the appellate court review application will be filed soon but has yet to set an exact date as he needed to further consult Anwar - who is serving a 15-year jail sentence in the Sungai Buloh prison.

"Such review application has never been done at the Court of Appeal level before, but we have strong (legal) precedents to support it," he said .

Meanwhile, lawyer Gobind Singh Deo confirmed that a similar application will also be made by his client, Anwar's co-accused and adopted brother Sukma Darmawan Sasmitaat Madja ( left ), whose petition was filed last Thursday.

The petitions of appeal were filed following the issuance of the 200-page grounds of judgment by Pajan, Richard and Hashim dated Aug 23 which stated that there was no substantial miscarriage of justice in the sodomy trial presided by High Court judge Arifin Jaka (now a Court of Appeal judge).

In April, the judges' oral decision had upheld Arifin's decision to convict Anwar and Sukma, for sodomising Azizan Abu Bakar, the former driver of Anwar's wife Dr Wan Azizah Wan Ismail.

Sukma - an Indonesian businessman who holds a Malaysian permanent residence status - was also ordered to be given four strokes of the rotan.

Anwar, once a prime minister-in-waiting, was sentenced six years for corruption and nine years for sodomy. He has served his first sentence and is currently seeking bail pending appeal for his sodomy conviction.

Reopen hearing on bail

In a related development, Sankara ( left ) informed that another application was filed at the Court of Appeal this morning seeking his client's case on bail to be re-opened to make way for further arguments.

He said submissions on the bail issue - which has yet to be decided although counsels ended their submission on July 23 - had been made without the benefit of the written judgment.

"After reading the judges' fatal flaws in their judgment, we have more cogent grounds to argue that may enhance my client's chance in being granted bail," Sankara said.

In seeking for the appellate court to review its sodomy decision, Anwar claimed that there had been " mala fides " on the part of the three Court of Appeal judges who failed to take proper care in making their findings on his alibi defence.

The judges had made an "irreversible error" when they concluded that he had not given notice of alibi, when this has not been disputed by the prosecution that he had done so, he stated.

It is also alleged that the judges had repeatedly demonstrated "the folly of their misconception" in various parts of the judgment where they had acknowledged Anwar's submission of the alibi notice.

"The judges had cribbed, cabined and confined themselves to a judicial role of no consequence, owing to their own inadvertence and/or lack of vigilance and care, depriving the appellant (Anwar) of his right to judicial adjudication on the issue of his alibi lawfully placed before the court as a prerequisite to the State incarcerating him."

Alibi defence

In doing so, Anwar claimed, the judges deprived him of an independent and impartial trial.

"The appellant will under the circumstances, apply for a stay of hearing of his appeal by the Federal Court pending reopening of the appeal in the Court of Appeal so as to obtain a lawful judicial pronouncement on his defence of alibi - a pronouncement if in his favour, may well dispose of the appeal without recourse by the appellant on the other (86) grounds set forth in this petition."

The Federal Court was urged not to deny the stay application as it will also deprive the jailed politician from an opportunity to be acquitted by the appellate court on the alibi issue.

Apart from the alibi issue, the petition also alleged that the Court of Appeal judges were wrong in not upholding the defence argument that Arifin ( right ) ought to gave disqualified himself from hearing the case in view of his undisputed ownership of shares in Dataprep - a company which prime minister Dr Mahathir Mohamad's son was also a shareholder at the same time.

The judges should have considered the argument especially since Mahathir had played a major role in the removal of Anwar from his ministerial posts thus forming a real danger of bias on Arifin's part.

He said the judges had also erred when they concurred with Arifin's decision to set aside the subpoena calling for Mahathir's testimony when no application was made by the prime minister.