The High Court erred in ruling that ex-deputy premier Anwar Ibrahim's RM100 million defamation suit against Prime Minister Dr Mahathir Mohamad could not be tried as the latter was protected by valid defences, the Federal Court heard today.

Anwar's counsel Karpal Singh said the Court of Appeal too decided wrongly by adopting the High Court decision.

He said the Federal Court must grant leave to Anwar to appeal against the wrongful decisions by the Court of Appeal and the High Court. The Federal Court will make a ruling on Friday.

On Dec 9 last year, the Court of Appeal dismissed Anwar's bid to pursue the suit and upheld the High Court decision to strike it out.

Sheltered by defences

The Court of Appeal held that Mahathir was sheltered by the defences of justification and qualified privileges.

Anwar filed the suit in January 1999, claiming that Mahathir at a press conference had falsely and maliciously accused him of committing an immoral act. He said that Mahathir knew his comments would be published locally and internationally.

In his statement of defence filed in March 1999, Mahathir contended that he spoke the words as prime minister on an occasion of qualified privilege. He said he made the remark in relation to Anwar's suitability for the office he held and after due inquiry and investigation.

In his reply, Anwar said the defence of qualified privilege was not open to Mahathir because he had acted maliciously by uttering and causing the offending words to be published and republished.

Duty-bound

Anwar appealed to the Court of Appeal after the High Court struck out the suit in August 1999 on the grounds that it was frivolous, vexatious and an abuse of the process of the court.

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

In affirming the High Court decision to strike out Anwar's suit, the Court of Appeal said it was clear that Mahathir was sheltered by the defences of justification and qualified privilege when he uttered the offending words.

"It is very plain and obvious that the claim of the appellant (Anwar) is unsustainable," said the court in the 11-page judgment.

Anwar was sacked from the government by Mahathir in September 1998 on the grounds of immorality.

In April 1999 Anwar was jailed for six years for abuse of power and in August last year he was imprisoned for nine years for sodomy, with the sentences to run consecutively.

Anwar had always maintained that Mahathir orchestrated a conspiracy to frame him because he was seen as a political threat. The government denied any plot, adding that Anwar received a fair trial.

Protected by privileges

Karpal told the Federal Court today that Mahathir could not hide behind the defence of justification and qualified privilege after tarnishing Anwar's reputation.

"Wide publicity of the sodomy trials of Dr Munawar Ahmad Anees and Sukma Dermawan Sasmitaat Madja could not necessarily implicate Anwar as being involved in an act of sodomy," he told the panel consisting of Chief Justice Mohamad Dzaiddin Abdullah, Chief Judge of Malaya Wan Adnan Ismail and federal judge Abdul Malek Ahmad.

Wide publicity over the matter also does not give Mahathir the defence of justification for defaming a person, said Karpal.

"Anwar was in detention during that time and Mahathir knew he would not be able to defend himself over all the allegations made and he made use of this opportunity to say those things," said Karpal.

Off-tangent remarks

Karpal also said the Nathan's judgment in the matter appeared "off-tangent" as he made unnecessary comments that did not relate to the case.

Mahathir's counsel Mohamed Adnan Shuaib said unnecessary comments by Anwar regarding Mahathir, the government, Umno and the police necessitated a reply by the prime minister.

He added that there were no case for Anwar in the suit as Mahathir was protected by the defences of justification and qualified privilege when he made the remarks.

"The words spoken by Mahathir were borne out of facts and true in substance," he said.

Anwar was not present in court today as he is still under treatment for a slipped disc. In any event, his appearance is not necessary as it is a civil suit.