The syariah courts in Selangor can extend the definition of the qazaf (bearing false witness) complaint to cover not only zina (unlawful sexual intercourse) but also sodomy, the Syariah Court of Appeal in Selangor heard today.

Fadhillah Sidek, who is Anwar Ibrahim's lawyer in his appeal to bring qazaf proceedings against lawyer Muhammad Shafee Abdullah, said the Syariah High Court judge had erred in law to limit the term to only include zina.

“Various Islamic scholars including Yusuf Al Qardhawi and others said zina is also inclusive of sodomy. The Syariah Court of Appeal can correct this perception, as this is recognised by various renowned Islamic scholars - not only Yusuf, but two other renowned scholars,” she said before a three-member bench, the highest in the state.

She added that the argument that the Syariah High Court does not have jurisdiction due to the legislature defining it so can be reviewed.

The lawyer said this case is of public importance due to Anwar's stature, where a poll conducted by Institut Darul Ehsan showed that 40 percent of Selangorians preferred him to lead the country.

Fadhillah said Anwar wanted to clear his name, which had been allegedly smeared by Shafee.

Wrong jurisdiction

Fadhillah also pointed out that the Syariah High Court judge had erred in saying that it does not have jurisdiction to hear the case and that the application should be made in the lower court.

However, the lawyer added, the Syariah High Court judge had given directions and even heard Anwar's complaint.

“If this is so, then the Syariah High Court should have given directions when the case was filed. However, it did not and when we filed this case, there was not even one complaint, when qazaf was already recognised as an offence in the state.

“We recognise that this qazaf complaint is the first of its kind in Selangor, and there is a need for the court to set a precedent. The Syariah High Court judge heard our complaint, and the issue of jurisdiction did not even arise until the judge said it in the judgment,” she said.

For this reasons, Fadhillah said, the court should recognise the need to review the findings of the Syariah High Court and allow it to hear and investigate the complaint.

Md Yusup who led the bench said they will make a decision on Anwar's appeal on June 5. The other judges were Aidi Moktar and Mukhyuddin Ibrahim.

It was reported that Syariah High Court judge Mohamed Fouzi Mokhtar dismissed Anwar's qazaf application because the Selangor state did not consider sodomy an offence similar to zina.

He said this was despite the acceptance by a majority of Islamic scholars that sodomy can be included under zina. 

"As the jurisdiction of the court is limited, it is up to the state legislature or the federal legislature to extend it," the judge had said.

Media initially barred

Earlier, the media was initially barred from covering the proceedings.

However after an application from Anwar's lawyer Fadhillah, the court agreed to allow the press in as far as seating allowed.

In her application for reporters be allowed in, Fadhillah reasoned that the case is one of public interest which is being observed by Islamic world.

The earlier order is believed to have been made by the court, who barred the media from the sixth floor where the case was fixed for mention before a three-member bench led by Md Yusup Che Teh.

Normally, the media is allowed to cover court proceedings at the civil courts up to the Federal Court level and the Kuala Lumpur Syariah Courts, but in today’s case the police informed the press that the matter was for family members only.

Malaysiakini managed to go up to the sixth floor where the case was scheduled, but was asked by the police to return and stay at the lobby.

Anwar's case concerns an application for Shafee to be summoned by the Syariah Court over the latter's roadshow or dialogue session held at the Akademi Kepimpinan Kapten Hussein, on Feb 17, 2015, after the former opposition leader was convicted of sodomy at the Federal Court.

He claimed that Shafee had committed qazaf  for "spicing up" and including extra details of the purported sodomy incident, and challenged Shafee to produce four witnesses.

Last October the Shah Alam Syariah High Court dismissed Anwar's application.