The Court of Appeal has struck out opposition leader Anwar Ibrahim's appeal on a RM100 million defamation suit against former premier Dr Mahathir Mohamad.
Justice Abdul Malik Ishak,who led the three-member panel, allowed counsel, VK Lingam's (left) application, who appeared for Mahathir, to strike out the appeal on a technicality after a 75-minute break.
The court also struck out Anwar's application filed today to seek an extension in time to submit a proper Memorandum of Appeal in Bahasa Malaysia.
Abdul Malik said the court had prepared a short decision and would give its written grounds later.
"The court has anxiously perused and looked at the notice of motion and the affidavits with a fine-toothed comb. We had also appropriately and judiciously looked at the written and oral submissions given and adjudicated it at length," Abdul Malik said.
"We are satisfied that the court should allow both applications to be struck out (i.e Anwar's appeal and the extension in time)."
He said it was a unanimous decision and ordered Anwar to pay costs.
The other members who sat on the panel were Justice Azhar Ma'ah and newly-elevated judge Syed Ahmad Helmy Syed Ahmad.
With today's decision, Anwar's appeal, which had been scheduled for Nov 2, will be taken off the list.
Anwar had sued the former prime minister for defamation over statements the latter made at a Suhakam conference.
The Kuala Lumpur High Court had in July 2007, struck out Anwar's suit without hearing the merits of the case, hence today's appeal.
Not in national language, so not correct
The technicality filed through a notice of motion by Lingam and supported by Mahathir's affidavit centred on Anwar's counsel having not prepared the memorandum of appeal via the national language, Bahasa Malaysia.
"This is in blatant disregard to provisions under Article 152 of the Federal Constitution read together with Section 8 of the National Language Act and the Interpretation Act or the Rules of the Court of Appeal," Lingam submitted.
"The appellant had included a purported memorandum only in the English language and not the national language."
Lingam, who was assisted by lawyer R Thayalan, also argued that Anwar's counsel had not signed the memorandum and thus the application should be rendered defective.
He said that, furthermore, the appellant had not submitted the chronology of events as required and failed to provide a proper index in the record of appeal.
"The several defects in the memorandum of appeal render the record of appeal incurably defective and the appellant's appeal is not properly brought before this court.
"Hence, the court should allow my client's application to strike out the record of appeal and dismiss Anwar's appeal with costs," said the senior counsel.
Karpal: Not fatal flaw
Senior counsel Karpal Singh (right) for Anwar had the court in stitches when he began his submission in Bahasa Malaysia before seeking permission from the court to speak in English.
"Such was the fuss in my learned friend to make this application seeming to champion the national language when in turn he stood up in submitting in English without seeking the court's permission," said Karpal.
The senior lawyer conceded that an error had been made, but said it was not a fatal flaw.
Hence, Karpal said, the court should allow for the appeal proper to be heard to hear the merits of the case as the date had been fixed.
"We are prepared to submit the memorandum of appeal in the national language now.
"Furthermore, when the matter came-up for case management in July, to fix a hearing date, counsel for Mahathir did not indicate such an error."
Now, Karpal said the counsel (Lingam) was sly enough to bring this matter to the court's attention, when the matter should have been brought up during case management.
Karpal said as senior members of the bar, Thayalan or Lingam should have educated and informed the other party about the mistake and not go through the back door by filing this notice of motion.
"This is just a technical flaw and is not fatal to the appeal process. The courts have in the past decided not to look into the technicality but act in the interests of justice. This should also be the case," he said.
Lingam in his reply said he had yesterday addressed the court in Bahasa Malaysia before reverting to English. Hence, today, he thought it was proper to continue on in English.
In reply to Karpal's comments, Lingam said it is not his job as counsel for the opposing side to educate the counsel for the appellants and they should have known the rules when submitting a memorandum of appeal.
Following today's decision, Karpal said he will consult with Anwar whether to file a leave application at the Federal Court, to appeal today's decision.
"I would advise strongly so as I feel the merits of the case should have been heard. We have 30 days to file an appeal and we hope the appellate judges will quickly provide their grounds for today's decision for us to file in a proper appeal," he said.
Counsel SN Nair, Nicholas Netto and Wan Anwar Wan Syahadat also appeared for Anwar.
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