Updated version The Court of Appeal today dismissed an appeal filed by jailed former deputy prime minister Anwar Ibrahim against the striking out of his RM100 million defamation suit against Prime Minister Dr Mahathir Mohamad.

Justice Ahmad Fairuz Sheikh Abdul Halim said the three-member panel including justices Denis Ong and Mokhtar Sidin unanimously dismissed the suit with costs.

Apologising for the absence of Mokhtar who was unable to attend the court this morning, Ahmad said, "We are unanimous. The appeal is dismissed with costs and the High Court judge's order to strike out the suit is affirmed."

Anwar too was absent as he is suffering from a slipped disc and has been hospitalised at the Kuala Lumpur General Hospital since Nov 25 ([#1]Anwar hospitalised; lawyers ask for postponement[/#], Nov 25).

In the suit filed on Jan 25 last year, Anwar claimed that Mahathir had defamed him by alleging that he committed immoral acts when the prime minister spoke to foreign and local reporters at a press conference.

Anwar's suit was struck out with costs by High Court judge RK Nathan on Aug 30 last year following an application by Mahathir on grounds that the suit was frivolous, vexatious and an abuse of the court process.

Nathan had ruled that Mahathir was duty bound to inform the public on Anwar's removal from his ministerial and party posts.

The prime minister had said in his statement of defence that he enjoyed qualified privilege as he spoke on the matter in his capacity as the prime minister, adding that what he had said was said in the course of discussing government and political matters concerning Anwar.

Qualified privilege

In an 11-page judgment, the Court of Appeal judges today said that they had carefully perused the High Court judge's judgment on the issue of qualified privilege and were unable to find anything in the said judgment that could indicate the judge had erred in law or facts in his reasoning and conclusion on that issue.

Citing the case of Lange v. Atkinson 3 NZLR (1988) 424 which held that "the defence of qualified privilege applied to generally-published statements made about the actions and qualities of those currently or formerly elected to Parliament... so far as those actions and qualities directly affected their capacity (including their personal ability and willingness) to meet their public responsibilities", the Court of Appeal stated that the decision of the High Court judge on the issue of qualified privilege should not be disturbed.

On the premise of the case cited, the judges said it was clear that the prime minister was sheltered by the defence of justification and qualified privilege when he uttered the offending words or statement.

"It is very plain and obvious that the claim of the appellant is obviously unsustainable," the judges said.

Anwar was represented by lawyers Karpal Singh, Sankara Nair, M Manoharan, Gobind Singh Deo and Ram Karpal Singh. Adnan Shuaib and N Chandran appeared for Mahathir.

Postponement

Asked by malaysiakini if Anwar would file an appeal at the Federal Court to overturn today's decision, Sankara said that he would have to take his client's instructions on Monday before proceeding further.

"I would be visiting him at the hospital on Monday after the Federal Court hearing," he said.

The Federal Court is scheduled to hear an appeal filed by Anwar against his conviction on four counts of corruption this Monday.

Defence lawyers have however confirmed that they would be seeking a postponement as Anwar will not be able to attend the hearing ([#1]Anwar immobile, lawyers to seek postponement[/#], Dec 7)

The Federal Court was earlier scheduled to hear the appeal on Nov 27 but postponed it to next Monday after the court was informed of Anwar's admission to the hospital.

The appeal to the Federal Court, comprising Malaya chief judge Wan Adnan Wan Ismail, Sabah and Sarawak chief judge Steve Shim and Federal Court judge - who will be Chief Justice on Dec 20 - Mohamed Dzaiddin Abdullah, is Anwar's final venue of appeal against his conviction.

He was found guilty by the High Court on April 14 last year of abusing his power in asking the police to get a retraction of a police report from two persons, Azizan Abu Bakar and Ummi Hafilda Ali, who had accused him of sexual misconduct.

Justice Augustine Paul sentenced Anwar to six years' jail for committing the offences at his (Anwar's) former residence between Aug 12 and Aug 27, 1997.

Anwar's appeal to overturn this verdict was dismissed by the Court of Appeal on April 29 this year when a three-panel court, presided by Appellate Court president Lamin Yunus, unanimously upheld the High Court's decision.