KUALA LUMPUR, Feb 9 – Former opposition leader Datuk Seri Anwar Ibrahim failed to plead the details of alleged fraud in relation to his conviction for sodomy, the High Court heard today.
Senior federal counsel Awang Armadajaya Awang Mahmud said Section 44 of the Evidence Act required the allegation of fraud to be established, and the fraud must refer to actual fraud, not constructive fraud.
“The fact that the plaintiff (Anwar) will only give further and better particulars of the alleged fraud through the application of discovery is flawed and fatal,” he said in his submission at the hearing of the government’s application to strike out the lawsuit filed by Anwar for his release from prison for sodomising his former aide, Mohd Saiful Bukhari Azlan.
Awang Armadajaya said the law required that the particulars of fraud be exactly given and must be shown with sufficient details on how, when, where and in what way the alleged fraud was committed.
“As such, the plaintiff’s allegations against the defendant (government) can never be regarded to have established the essential ingredients of an action under Section 44 of this act,” he said.
He also submitted that the suit brought by the plaintiff was frivolous and vexatious because he had failed to provide sufficient details contrary to requirements under Section 44 of the Evidence Act. Awang Armadajaya also said the suit should be struck out because the plaintiff had not named the correct parties in his suit.
The plaintiff, he said, should have named the Attorney-General (AG), who is also the public prosecutor and other officers who were alleged to have conducted the trial tainted with fraud, in order to establish a cause of action under Section 44 of the Evidence Act.
“The averments in the statement of claims against the government have also essentially conflated the role of the AG as public prosecutor who is independent with the role of the AG as the Legal Advisor to the government,” he said.
Anwar filed the suit on April 17, 2017 in another attempt to be released from jail. He named the government as the sole defendant. He is seeking among others, an order to set aside the decision of the Court of Appeal, dated March 7, 2014, and that of the Federal Court, dated Feb 10, 2015, based on perjured evidence by Mohd Saiful.
Anwar was initially acquitted by the Kuala Lumpur High Court on Jan 9, 2012, but the Court of Appeal reversed the acquittal and sentenced him to five years jail. On Feb 10, 2015, the Federal Court dismissed his appeal and upheld the conviction and sentence.
In his statement of claim, Anwar said Mohd Saiful had given perjured evidence, which to the knowledge of the defendant (government) was false, yet the defendant relied on and perpetuated the perjury to its advantage. He claimed the government had knowledge that the sodomy act by him was fabricated by Mohd Saiful. Anwar said due to the fraud, the judgment of the Court of Appeal and Federal Court was invalid and should be set aside as provided under Section 44 of the Evidence Act.
Anwar is currently serving a five-year jail sentence at Sungai Buloh Prison for sodomising Mohd Saiful at Unit 11-5-1, Kondominium Desa Damansara, Jalan Setiakasih, Bukit Damansara here between 3.10pm and 4.30pm on June 26, 2008. Judge Datuk Nik Hasmat Nik Mohamad fixed March 12 for decision on the government’s application to strike out the suit. — Bernama