Anantham Kasinather JCA

(delivering judgment of the court):

BACKGROUND FACTS

[1]The respondent filed a claim based on libel. The respondent's pleaded case was that the appellant had uttered the following words:

DAP main PAS dari kanan. PAS main DAP dari kiri. Anwar main dua-dua dari belakang

at a ceramah at Lembah Pantai in Kuala Lumpur on or about 20 February 2008.

[2]The respondent alleged that the impugned words were defamatory and libelous of the respondent and in their natural an ordinary meaning, meant and were understood to, inter alia, mean that:

(a)the respondent had engaged in carnal intercourse with a male partner or partners against the order of nature which is an offence under ss 377A377DPenal Code

(b)the respondent was an homosexual;

(c)that the respondent was engaged in activities contrary to Islam and was further guilty of an offence of liwat under s 25Syariah Criminal Offence (Federal Territories) Act 1997

(d)that the respondent was a pervert and/or of no morals;

(e)that the respondent was unfit to hold political, or any office;

(f)the plaintiff was a person of criminal tendencies; and

(g)that the respondent was dangerous to Malaysian society.

[3]Apart from denying that the impugned words bore or were understood to bear or were capable of bearing the meaning ascribed to the same in para 2 above, the appellant also sought to justify a lesser defamatory meaning. The respondent also pleaded the defence of justification claiming that the impugned words are substantially true in their natural and/or ordinary meaning and/or innuendo meaning. The defence of justification was solely based on the factual findings by the Federal Court in the case of Dato' Seri Anwar bin Ibrahim v Public Prosecutor and another appeal

to summarise our judgment, even though reading the appeal record, we find evidence to confirm that the appellants were involved in a homosexual activities and we are more inclined to believe that the alleged incident at Tivolli Villa did happen sometime …

in the judgment of the Federal Court in this case relied upon in support of this defence.

[4]The appellant's pleaded case was that:

The above quotation clearly means that the Federal Court found the Plaintiff to be involved in homosexual activities. Earlier, the High Court at Kuala Lumpur found the Plaintiff guilty on a charge of sodomising one, Azizan b. Abu Bakar and the conviction was upheld by the Court of Appeal. In the appeal to the Federal Court, although the Plaintiff's appeal was allowed by the majority of the Federal Court, nevertheless the majority had made a specific finding of fact as quoted above;

Further, the dissenting Judgment of Rahmah Hussain, FCJ in the same case concluded that the Plaintiff was guilty of the offence under Section 377B of the Penal Code, a buggery offence.

Another man, Dr. Munawar Anees's conviction still stands, in taking part with the Plaintiff in homosexual acts. The application by Dr. Munawar Anees to the Federal Court to review the decision of the Court of Appeal under Rule 137 of the Rules of the Federal Court 1995, was dismissed on 17th December 2008.

[5]On 21 February 2011, the appellant filed a summons in chambers under O 18 r 19(1)(a)–(b) and (d) contending that the appellant's statement of claim did not disclose a reasonable cause of action and/or was frivolous, vexatious and filed in abuse of the process of the court, inter alia, on the following grounds:

(a)Bahawa keputusan Mahkamah Persekutuan dalam kes Dato' Seri Anwar Ibrahim v PP

(b)Bahawa Defendan pada masa tersebut adalah Naib Ketua Pergerakan Pemuda UMNO Malaysia yang mempunyai tanggungjawab undang-undang, moral dan sosial kepada orang awam dan masyarakat Melayu. Orang awam secara amnya mempunyai suatu kepentingan sah yang bersamaan dalam menerima maklumat tentang hal-hal dalam perbincangan-perbincangan yang memberi kesan kepada kebajikan sosial, ekonomi dan politik. Oleh yang demikian, Defendan adalah dilindungi oleh Pembelaan Perlindungan Bersyarat;

(c)Bahawa terdapat ke