Lawyer Muhammad Shafee Abdullah said Anwar’s sexual preference was also fortified when another apex court bench in 2015 affirmed his conviction for sodomising former aide Mohd Saiful Bukhari Azlan.
“We are relying on the defence of justification as an antidote in response to the defamation suit by the respondent (Anwar)” said Shafee, who made his submission from his hotel room in New York during a virtual proceeding.
The High Court last week allowed Shafee, who is facing charges of money laundering and filing incorrect tax returns, to leave the country to handle his son’s higher education matters.
In September 2017, the High Court awarded Anwar RM150,000 in general damages in the suit he filed against Khairy over the “homosexual insinuation”.
Judge Azizul Azmi Adnan ruled that Khairy’s “main belakang” statement had a sexual connotation meant to attack Anwar and dismissed Khairy’s defence of justification and qualified privilege.
In the suit, Anwar alleged that Khairy, then Umno Youth vice-chief, had uttered defamatory words against him at a ceramah in Lembah Pantai on Feb 20, 2008.
Anwar claimed that the “main belakang” phrase used by Khairy suggested that he was a homosexual and a person of low morals.
Shafee, in his submission today, said Anwar was acquitted of sodomising his former family driver, Azizan Abu Bakar, on a technical ground.
In September 2004, judges Abdul Hamid Mohamad and the late Tengku Baharuddin Shah Tengku Mahmud, in a majority ruling, allowed Anwar’s appeal, while Rahmah Hussain dissented.
The panel then also allowed the appeal of Anwar’s adopted brother, Sukma Darmawan Sasmitaat Madja, who was jailed six years for the same offence.
Shafee said Hamid had stated in his judgment that the court “found evidence to confirm that the appellants (Anwar and Sukma) were involved in homosexual activities and we were more inclined to believe that the alleged incident at Tivoli Villas did happen”.
He said Anwar made a failed attempt before another Federal Court hearing in 2014 to remove the one paragraph.
In February 2015, a five-member apex court affirmed Anwar’s five-year jail term for sexually assaulting Saiful at an apartment in Kuala Lumpur in June 2008.
Shafee said Khairy’s exaggerated speech just before the 12th general election was meant to inform the public that the opposition – PKR, DAP and PAS – played each other and Anwar was famous for that.
The lawyer said Khairy, now the health minister, wants to convey that these parties were together in 1999 to form Barisan Alternatif and were planning another alliance for the general election in 2008.
He said Khairy was attempting to drive home the point that the political parties in the Alliance and later Barisan Nasional were united and had permanent relationships.
“It was a humorous speech to relay the message that the opposition indulged in short-term convenient marriages but broke up later,” he said.
Judge Lee Swee Seng, who sat with Darryl Goon and Ghazali Cha, adjourned the hearing to a date to be fixed in January.