The involvement of attorney-general Abdul Gani Patail in jailed ex-deputy prime minister Anwar Ibrahim's sodomy trial had contaminated the entire proceeding, the Federal Court heard today.

Anwar's lead counsel Christopher Fernando claimed that Abdul Gani ( left ), who was then a senior deputy public prosecutor, should never have been allowed to prosecute the case following the defence's revelation that he (Abdul Gani) had allegedly tried to procure false evidence against the politician.

Fernando said that until today, Abdul Gani had failed to rebut the allegation which was made by lawyer Manjeet Singh Dhillon, who was also one of the defence witnesses.

Manjeet had claimed that Abdul Gani and another senior deputy public prosecutor had asked his client businessman S Nallakaruppan to give false "sexual misdemenour" evidence against Anwar's involvement with four women.

The two prosecutors had allegedly told Manjeet that they would consider reducing the charge face by Nallakaruppan, who was then tried for an offence under the Internal Security Act which carries the death penalty.

Pointing out that the prerequisites for a fair trial is a fair judge and a fair prosecution, Fernando said: "Was it fair for the court to allow these two prosecutors to continue prosecuting the appellant (Anwar). These are people who had personal agenda and were determined to secure a conviction through devious means."

Allegations not rebutted

He said trial judge Arifin Jaka ( left ) should have disqualified the two prosecutors until they had cleared themselves from serious charges.

"To date the AG has not rebutted the allegations. If you don't rebut the allegations, you are deemed to have admitted to it. Instead of drawing such inference like any fair judge would have done, the court dismissed the allegation and allowed them to continue thus contaminating the entire proceeding," he said.

On this ground alone, the court must allow the appeal and acquit the appellant, added Fernando.

The lawyer was submitting on Anwar's last bid to set aside the nine-year jail sentence imposed by Arifin in August 2000 after the politician was found guilty of sodomising Azizan Abu Bakar, who was his wife Dr Wan Azizah Wan Ismail's driver.

His conviction and sentence were later upheld by the Court of Appeal.

The appeal is being heard by a three-member Federal Court panel - Abdul Hamid Mohamad, Rahmah Hussein and Tengku Baharudin Shah Tengku Mahmud.

Anwar's co-accused and adopted brother Sukma Darmawan Sasmitaat Madja ( left ), who was jailed six years and ordered to be whipped four times for abetting Anwar, is also appealing.

If their appeals fail, Anwar will remain in jail until 2014 - although he could be out by 2009 given the standard two-third remission for good behaviour - while Sukma will face whipping.

In his submission, Fernando also said that the Court of Appeal had committed a serious mis-direction of law when it held that Manjeet's allegation was baseless.

"They held that the alleged demand (to procure false evidence) was to secure information on the appellant's womanising habits. Since the charge against Anwar was sodomy, it would have been a futile exercise for the two prosecutors and therefore the allegations were not to be believed," he said.

He said that the court should not resort to such simplistic reasoning in considering the argument and urged the Federal Court to rectify the matter.

Insufficient evidence

In the afternoon session, Sukma's counsel Gobind Singh Deo submitted that there is insufficient evidence to convict his client on the charge of abetment.

He said the testimony of the complainant (Azizan) failed to prove that Sukma had instigated or abetted Anwar into committing the sodomy offence.

He added that it was obvious that Arifin had based his findings (that Sukma was guilty of abetment) on a confession his client had made while in police detention.

"Before the confession can be used, it must be held to be voluntary and true. The High Court judge should have determined this first considering that Sukma has since retracted the confessions," he said.

(Sukma retracted the confessions alleging that it contained false evidence against Anwar and that he had made it under duress while under police detention)

"Failure of the judge in making a specific finding that he was satisfied that the confession was true and voluntary amounted to a miscarriage of justice. Thus the abetment conviction must be set aside," he said.

The appeal continues tomorrow.