This follows the Court of Appeal’s ruling to dismiss his appeal against liability and RM150,000 in damages awarded by the High Court in Kuala Lumpur to the now opposition leader in 2017.
Justice Darryl Goon said the defence put up by Khairy to rebut the suit had failed.
He said the defence of justification was not made out, whether in total or partially.
“We are also of the view that the trial judge did not err in concluding that the defendant’s (Khairy) defence of qualified privilege was also not made,” said Goon, who sat with Lee Swee Seng and Ghazali Cha.
Goon said the bench also did not find that the damages awarded were manifestly excessive.
“There exists no justification for appellate intervention and the appeal is dismissed. The ruling of the High Court is affirmed,” he said.
Anwar, who was represented by Gopal Sri Ram and J Leela, was awarded RM50,000 in costs.
The bench also dismissed Khairy’s appeal to include the defence of fair comment to challenge the suit.
“It was made much too late in the day after the trial was concluded for such an amendment,” he said in awarding another RM10,000 in costs to Anwar.
Goon said the trial judge had taken the impugned statement in the right context, including taking into account the analogy and the figure of speech employed to conclude it was defamatory.
He said the sting was not so much on the words that were actually used but what the ordinary man would infer.
“The inference that may be drawn must be regarded as the natural and ordinary meaning of the words used,” he added.
Khairy, who is now health minister, made the remarks during a ceramah at Lembah Pantai during the 2008 general election campaign.
Goon also said a statement in the majority judgment by then Federal Court judge Abdul Hamid Mohamad in 2004 in acquitting Anwar for sodomy was irrelevant and inadmissible in this defamation case.
“It was merely an observation by Hamid and has no evidential value,” he added.
Anwar’s lawyer argued that Section 43 of the Evidence Act barred Khairy from importing what was said in a criminal proceeding in his present civil case.
Hamid had stated that the court “found evidence to confirm that the appellants (Anwar and Sukma Darmawan Sasmitaat Madja) were involved in homosexual activities and we were more inclined to believe that the alleged incident at Tivoli Villas did happen”.
Hamid and the late Tengku Baharuddin Shah Tengku Mahmud allowed Anwar’s appeal, while Rahmah Hussain dissented.
The panel also allowed the appeal of Anwar’s adopted brother, Sukma Darmawan Sasmitaat Madja, who was jailed for six years for the same offence.
On Jan 17, Sri Ram submitted that Khairy defamed Anwar in front of a Malay crowd by depicting him as a homosexual and a person of low morals.
“Khairy was addressing a crowd who understood the context in which the reference against Anwar was made,” he had said.
In a statement of claim, Anwar said Khairy had uttered that the then opposition coalition comprising PAS, DAP and PKR, “undergoes mutaah marriage as practised by the Shia sect. They marry at night and divorce the following day to legitimise a vice. PAS plays DAP from the left and DAP plays PAS from the right. Anwar plays both from the back.”
He said Khairy was also addressing a Muslim crowd who belonged to the Shafiʽi sect and reference was made to the Shia sect which is regarded as a deviant group in this country.
Lawyer Shafee Abdullah, appearing for Khairy, said he has been instructed to file an appeal in the Federal Court.
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