The Federal Court will decide tomorrow whether to grant jailed politician Anwar Ibrahim bail pending the court's decision on his sodomy appeal.

The three-member bench - Abdul Hamid Mohamad, Rahmah Hussein and Tengku Baharudin Shah Tengku Mahmud - said the court would give its decision after taking account submissions from both the defence and prosecution.

Anwar has already been in jail for more than five years, having completed a sentence for a corruption conviction.

The court yesterday completed hearing his appeal against a nine-year sentence for sodomy which he has begun serving. Anwar's two previous applications for bail at the lower courts were rejected.

Also applying for bail is Anwar's adopted brother and co-accused, Sukma Darmawan Sasmitaat Madja, who begun serving his six-year jail sentence since last year after the Court of Appeal revoked his bail after rejecting his appeal.

If Anwar's sodomy appeal - which the Federal Court promised yesterday to decide soon - fails, the politician will remain in jail until at least 2009 even with a one-third remission of sentence for good behaviour.

Against judicial trend

In arguing for bail to be allowed, lead counsel Christopher Fernando urged the court to consider carefully the conduct of the prosecution - led by attorney-general Abdul Gani Patail - in vehemently objecting to his client's request for bail.

"Their action departs from judicial trend practiced for the past 25 years where bail is usually granted as a matter of course and the prosecution hardly ever objects," he said.

He pointed out that the only reason the prosecution could object to bail was if the applicant presented a danger to the public or if there was a strong likelihood of the person absconding.

"In this case, Datuk Seri Anwar would be no risk to anyone. Neither will he abscond. Where would he go? The whole world knows and highly respects him," said Fernando.

He said since other bail applications were normally allowed, there was no reason for Anwar's application to be treated differently.

"Is it because his name is Anwar Ibrahim and he is the former deputy prime minister that he is to be treated differently?

"I urge the court not to become an accomplice to what the prosecution wants this court to do, which is to deny him (Anwar) bail," he said, referring to the attempt by two key members of the prosecution team to procure fabricated evidence against Anwar.

Counsel rapped

Fernando also asked the court to take into account Anwar's health as the former deputy premier was suffering from chronic back pain. He pointed out the recommendations of the Malaysian Human Rights (Suhakam) which said that Anwar should be released to seek medical treatment of his choice.

To this Justice Abdul Hamid said: "I don't think it's right to tell the court what other organisations or bodies like Suhakam recommend ... or how we should handle the issue. You can adopt their reasoning if you think that it's appropriate but that's all."

Fernando apologised for offending the court, adding that it was entirely up to the judges to consider the matter.

He then urged the court to look at the 'humanitarian aspect' of the motion as Anwar has been in jail for the past five years in pain.

"Imagine if the applicants are your brothers or friends, Would My Lord and My Lady sit there and deny them bail?"

The statement provoked Abdul Hamid to say: "Are you suggesting that we should decide based on our emotions?", to which the counsel said "no".

Fernando closed his submissions by saying his client would welcome any extra conditions imposed by the court as part of the bail conditions if it deems it appropriate.

Stay of execution poser

Anwar's second lead counsel Karpal Singh then submitted that to deny Anwar bail would be a judicial injustice.

He argued that bail should be granted as the ex-deputy premier had presented cogent grounds for appeal and that there was a high likelihood the appeal would be allowed.

"However, he should not be made to wait for the court's decision as we don't know when this would be although it has promised to deliver it as soon as possible ," said Karpal.

Objecting to bail being granted, Abdul Gani said the court had no jurisdiction to hear the application as it would involve a stay of execution of Anwar's sodomy sentence pending the disposal of its appeal.

He said Section 89 of the Courts of Judicature Act - under which the bail application was filed -stated that no conviction and sentence impose by a lower court could be stayed even though there was a pending appeal before the Federal Court.

"The provision does not state that the Federal Court may stay execution and in absence of these words we submit that Your Lordships have no power to grant stay of execution," said Abdul Gani.

Expert opinion evidence

However, in the event that the court disagreed with the technical argument, the AG argued that a stay of execution is not an automatic right to appellants.

"The refusal or granting of stay is a matter of discretion by the court and that it is not automatically granted whenever there is an appeal. It is a discretion vested on the court to exercise judiciously," he said.

Abdul Gani also claimed that both Anwar and Sukma should not be granted bail as they had failed to show any special circumstances.

"They have failed to show that their appeals have good grounds and that they are likely to succeed. Looking at the appeal, we submit there is no likelihood for the appeals to succeed."

As to Anwar's health condition, Abdul Gani said that there was no expert evidence to support his lawyers' contention that his illness has worsened.

"We are not expert to say whether he is in pain or not. We cannot simply take the counsel's words. If the defence was really serious to aver to the health issue, they would have at least got an expert opinion to support the application which they did not," said the AG.

International observers

Meanwhile, an international observer at the appeal, Mark Trowell - a lawyer who is representing the International Commission of Jurists and the Australian Bar Association - said he has "no complaint as to the conduct of the appeal proceedings".

"However, the fairness of this appeal will be judged by the final decision of the Federal Court," he stressed.

Trowell also expressed concern about Anwar's deteriorating health.

He said that Anwar's "failing health was deserving of some clemency and a compassionate response by the authorities to ensure that he received the necessary medical treatment".

Anwar's appeal hearing which began last Monday has drawn a number of international observers, including Indonesia's former attorney-general Marzuki Darusman, who is representing the Inter-Parliamentary Union.