The Syariah Court of Appeal in Kuala Lumpur today dismissed former opposition leader Anwar Ibrahim’s application for a review of his qazaf (bearing false witness) application against Mohd Saiful Bukhari Azlan that was struck out by the Syariah High Court.

In an unanimous decision, the three-member bench led by Md Yusup Che Teh ruled that zina (adultery) does not include the offence of sodomy and that the syariah court does not have the power to review this.

The decision today comes despite the bench recognising that hukum syarak (Islamic jurisprudence) bypasses all existing laws, but the judges said that since Parliament has stipulated ‘zina’ to mean adultery between a man and a woman, they had to adopt this definition.

The court recognised the argument by Anwar's lawyers, led by Kamar Ainiah Kamaruzaman and Rafie Mohd Shafie, that Islamic scholars such as Imam Syafie, Imam Hambali and Imam Maliki recognise that sodomy is also an act of zina (adultery).

Md Yusup also ruled that the ketua pendakwa syarie (chief syariah prosecutor) cannot be compelled by the court to take action on Saiful as the prosecutor has independent discretion.

"Hence this application is dismissed, with a cost of RM5,000," Md Yusup said.

The other judges were Yusof Musa and Mohd Amran Mat Zain

Anwar had named the syariah chief prosecutor, the Federal Territory Islamic Department and Minister in the Prime Minister's Department Jamil Khir Baharom as respondents.

The PKR de facto leader had filed the application to compel the three to take qazaf action on Saiful, his accuser in the Sodomy II trial in the civil court.

Anwar had applied to the Syariah Court of Appeal to review the Syariah High Court decision of April 2010 that struck out his qazaf application.

He filed the application in 2010 for Jawi and its chief prosecutor to take action on Saiful under qazaf, for allegedly lying and not coming up with the four required witnesses to verify his sodomy allegation

Appeal to Agong to be filed

Rafie told reporters that Anwar had instructed them to file an appeal with the Yang di-Pertuan Agong.

An application, Rafie said, would be made to the incoming Yang di-Pertuan Agong Sultan Muhammad V, who would come into office on Dec 12.

In explaining the court decision, the lawyer said the Syariah Court of Appeal took a narrow view with regard to sodomy, although Islamic scholars recognise that sodomy is part of zina, as was submitted in court.

“Here, in the syariah court, they recognise that hukum syarak (Islamic jurisprudence) is above all laws, yet the court found that it is bound by the limitation to the Act passed in Parliament on the definition of zina (adultery) to only the relationship between a man and woman,” he said.

“For this reason, we will file an appeal to the Yang di-Pertuan Agong, who is the head of state in the Federal Territory.”

Lawyer Rusnizam Rahim appeared for the respondents.

Jamil Khir was also present in the courtroom and before the proceeding began, he was seen shaking hands with Anwar during the short chat they had.