PUTRAJAYA (Feb 7): Health Minister Khairy Jamaluddin failed in his appeal over a defamation suit filed by opposition leader Datuk Seri Anwar Ibrahim 14 years ago over the former Umno Youth chief's "main belakang" remark for which he was ordered to pay RM150,000 damages to the PKR leader.
A three-member Court of Appeal bench led by Justice Datuk Lee Swee Seng on Monday (Feb 7) in an online hearing upheld the decision of the High Court in 2015, when it found that there was no appealable error that warranted appellate intervention.
Justice Datuk Darryl Goon Siew Chye who wrote the decision said as in Malaysia there are no jury trials, the trial judge would have to determine on the question of law and facts of the case.
The impugned statement, he said, in the choice of analogy and figure of speech within the natural and ordinary meaning was capable of being defamatory to the plaintiff (Anwar).
“Hence, we find no merit in the appeal. The decision of the High Court judge is affirmed. We also find that the damages awarded by the High Court were not manifestly excessive,” said Justice Goon.
Sitting with the two judges were Justice Datuk Ghazali Cha in making the unanimous decision.
The court also ordered Khairy to pay RM50,000 costs to Anwar.
Earlier, Justice Goon also read that the bench unanimously dismissed Khairy's appeal to amend his statement of defence with regard to the defamation suit by Anwar.
“There was no appealable error in the exercise of the High Court judge in dismissing the amendment as it came much too late of the day for the amendment of the nature to be made to amend the statement of defence,” he said.
The bench also ordered Khairy to pay RM10,000 for the dismissal of this appeal.
Hence, the health minister has been ordered by the Court of Appeal to pay RM60,000 costs in total to Anwar.
The Umno leader previously wanted to put in Anwar's sodomy II conviction that was upheld by the Federal Court in February 2015 in his defence statement before the defamation trial was concluded but this was not allowed by High Court Judge Azizul Azmi Adnan.
Khairy was represented by Tan Sri Muhammad Shafee Abdullah, while Datuk Seri Gopal Sri Ram and J Leela appeared for Anwar.
Shafee on Monday asked the bench whether the broad grounds of Justice Goon's decision are ready and Justice Lee said it would be made available.
This follows the senior counsel having indicated to the bench that he had received instructions to file an application for leave to appeal to the Federal Court. The three-member bench heard Khairy's appeal last month before reserving its decision until Monday.
Anwar filed the defamation suit against Khairy, better known as KJ, on March 7, 2008, seeking RM100 million in damages from the latter following a political ceramah in Lembah Pantai, where Khairy used the phrase "main belakang", which suggested the now opposition chief was a homosexual and a person of low moral character.
The health minister in his defence statement claimed that what he meant was Anwar's truant ways with regard to the opposition pact then with DAP and PAS and not over the homosexuality allegation.
In the High Court, Justice Azizul found the remark defamatory and ordered Khairy to pay RM150,000 damages and costs of RM60,000.
Subsequently, Khairy appealed against the non-admission of the amended defence and the decision of the High Court.
However, an earlier Court of Appeal bench struck out Khairy's appeal due to a technicality — that he did not file two notices of appeal against the High Court decision (i.e. for the non-admission of the amended defence and the decision on the suit).
Subsequently, Khairy on Dec 15, 2020 appealed against the Court of Appeal's decision to strike out his appeal. The Federal Court then reinstated the appeal for the case to be remitted back to the Court of Appeal and heard on its merits. After several postponements, the appeal proper was heard on Nov 2 last year and continued on Jan 17 before Monday's decision.
Meanwhile, Khairy had also asserted former Federal Court judge (who later become Chief Justice) Tun Abdul Hamid Mohamad's judgement in Anwar's first sodomy case whereby the apex court held in 2004 in acquitting Anwar based on conflicting facts regarding the dates of the incidents, the former top judge, however, had written that despite the acquittal, "he believed the sodomy I incident happened".
To this, Justice Goon classified the judgement by Justice Abdul Hamid as "obiter dictum" — having no evidential or probative values.
"Obiter dictum" is a judge's expression of opinion either in the court or in his written judgement but does not amount to a precedent and is not legally binding.