Jailed ex-deputy prime minister Anwar Ibrahim's sodomy appeal stands a good chance of being allowed by the Federal Court as a result of the factual error made by the Court of Appeal when it dismissed his sodomy case last March, said lawyer Karpal Singh.

He was confident that the flawed judgment proved that Anwar stood a good chance in his appeal at the Federal Court and thus should be allowed to be freed on bail instead of being "punished" pending appeal.

He claimed that Court of Appeal judges Pajan Singh Gill (now a Federal Court judge), Richard Malanjum and Hashim Yusoff had made a fundamental error in their 206-page grounds of judgment released on Aug 23 when stating that Anwar had not filed a notice of alibi.

"The court had stated that the appellant (Anwar) did not file a notice of alibi when in fact he had at the beginning of the (sodomy) trial. This is a serious mistake that goes to the root of the defence," Karpal said.

"Your lordships must be courageous enough to accept that a mistake had been done and express what had transpired by granting the appellant bail (pending appeal) because we will succeed in our appeal (at the Federal Court) on this issue."

He was submitting a new point to add to the previous arguments submitted last July in which Anwar and co-accused Sukma Darmawan Sasmitaat Madja are seeking bails pending the disposal of their appeals against the Kuala Lumpur High Court decision to convict them for sodomising former driver Azizan Abu Bakar.

In 2001, Anwar was jailed nine years, while Indonesian-born Sukma was sentenced to six years and four strokes of the rotan.

When the Court of Appeal rejected their appeals last April, it also revoked Sukma's RM50,000 bail granted by the High Court two years ago and ordered the Indonesian businessman to begin serving his sentence.

Today's arguments were also made by Anwar's leading counsel Christopher Fernando and Sukma's lawyer Gobind Singh Deo. Attorney General Abdul Gani Patail and head of prosecution unit senior DPP Mohd Yusof Zainal Abiden had submitted on behalf of the prosecution.

After recording all the arguments which among others included the appellants' dissatisfaction over the court's delay in deciding the bail applications, Pajan said that he" will not take long" in making a decision.

"The last time, unfortunately, we had to deal with the grounds of judgment for the appeal proper. And during that time, we had also heard the bail application. The two matters had overlapped... and by that time it was already October and the appellants had made their application (to forward fresh argument ). I had no intention to delay the matter," he said.

Verbal sparring

Earlier the judge and Karpal were involved in a verbal sparring when the lawyer expressed his dissatisfaction over the court's delay in making its decision on Anwar's bail application stating that the four-month delay as "unprecedented".

Despite protests from judge who urged Karpal to go straight to his arguments, the lawyer went on to say how surprised he was that the judges - who had been in private practice themselves - needed such a long time to decide on such basic application.

"I don't wish to be disrespectful, but Your Lordships were members of the Bar before and based on our experience, we all cannot deny that decisions on bail applications are mundane applications and they do not normally take more than three days," he said.

To this Pajan replied that the arguments presented by counsel for appellants and the prosecution which ended on July 23 had encompassed a large area of law and facts.

"But this does not mean that the court can take four months to decide on such simple application," Karpal argued.

Pajan repeated his argument and said that the issue is serious and that the court must consider all arguments and facts before making a final decision.

"What kind of consideration? I hope there is no political consideration..." said the lawyer whose statement provoked the judge to reply that no other consideration is given except for justice and fairness.

Leading counsel Christopher Fernando expressed his surprise over the prosecution's determination to object to Anwar's application for bail - something which is usually granted in sodomy cases.

"There is no reason for them to object the bail as there is no likelihood for him to jump bail or tamper with witnesses as the case is already at the appeal stage. Further he needs to go for medical treatment," he said.

"We wonder would have they done that (objecting to the bail application) if the accused had not been Anwar Ibrahim. Politicians have been charged before and bails had been easily granted so why the objections in this case?" he said.

'Be courageous'

Meanwhile, Sukma's counsel Gobind Singh Deo had urged the court not to punish the two appellants for the mistakes that it had made.

"Despite the pain and efforts taken to put forth a solid defence (of alibi) we note with regret that the court made an error against the first appellant (Anwar) which is in fact a joint defence with the second appellant (Sukma)," he said.

"These two appellants shouldn't pay for that error and the court must be courageous enough to accept the mistake and rectify it by issuing bail," he said.

He also expressed his disappointment on the court's delay in making a decision on the bail application.

"In the appeal proper it took us three weeks to advance 80 grounds of appeal, yet it only took the court one week to make its oral decision to dismiss the appeal. Yet it's been four months since the court had heard our applications for bail," he said.

Head of prosecution unit senior DPP Mohd Yusof Zainal Abiden replied that the appellants must present an exceptional and special circumstance that has a certainty to succeed.

"They have to prove that this error which they claimed have been committed is a ground that has a certainty to succeed without detailed arguments. We submit that they have failed to do so," he said.

Instead, he said, all the appellants had done was to show that there had been an error that merely raised arguable points involving mainly on the laws of alibi.

Even if the appellant had managed to prove that there had been an error, the Federal Court may still dismiss the appeal if it is satisfied that the error had not occasioned to a miscarriage of justice.

"Therefore there is no basis to the application and we urge the court to dismiss the application (for bail)," he said.

The same panel of judges and counsel will meet again on Wednesday to hear Anwar's other application for the court to review its own decision is dismissing his appeal against the sodomy conviction.