The health condition of jailed ex-deputy premier Anwar Ibrahim does not meet the test of 'exceptional circumstances' to warrant a bail pending the disposal of his appeal against a sodomy conviction, ruled the Court of Appeal today.

The court rejected the claim made by the politician's lawyers that his slipped disc condition had since worsened as it was not supported by any medical evidence.

"In fact there is no assertion or any medical evidence produced to show that the continuous incarceration of the first appellant (Anwar) has or is the cause of his further injuries," said Justice Pajan Singh Gill in his written judgment.

The other two judges - Richard Malanjum and Hashim Yusoff - did not deliver separate judgments. However they concurred with Pajan.

Pajan's grounds of judgment were contained in his 37-page written judgment which was made available to the media soon after the court delivered its decisions on the bail applications and stay of execution made by Anwar and his adopted brother Sukma Darmawan Sasmitaat Madja.

The duo were jailed nine and six years respectively in 2001 for sodomising Azizan Abu Bakar, the former driver of Anwar's wife and Keadilan president Dr Wan Azizah Wan Ismail.

The ex-deputy premier started serving his jail term on April 14 last year after serving four years for a corruption conviction.

Serious offence

Meanwhile, Pajan said while the lawyers offered no medical proof, there was ample evidence of steps taken to improve his condition in reference to the affidavit filed by Anwar's government appointed consultant physician Dr S Jeyaindran.

"...he (Jeyaindran) deposed that the first applicant (Anwar) declined all offers to have the surgery done locally. It was further deposed that a panel of consultants had reviewed the response of the first applicant to conservative treatment and was of the opinion that he responded well," added the judge.

The court also rejected the argument that sodomy was not a serious offence as to justify the denial of bail.

"The gravity of the offence may be a factor to take into account, distinction should be made between pre-conviction and post-conviction for bail. The latter does not allow a convict to benefit from the presumption of innocence," said Pajan.

He also disagreed with the contention that sodomy was not a serious offence considering the maximum penalty of 20 years provided for in the Penal Code.

'Not unreasonable'

The court also rejected the argument that Anwar's long wait to have his appeal heard at the Federal Court as grounds for bail.

Pajan said the waiting period of six months to one year "is not unreasonable" considering the duration of the sentence imposed on politician.

"One other factor that is unfavourable to the first appellant is the fact that he had been convicted and indeed has served his sentence on another offence (corruption).He does not have the benefit of being the first offender," added the judge.

He said the pending application for the corruption conviction to be reviewed by the Federal Court does not give Anwar any advantage as the court had no choice but to accept the conviction to stand as record against him until there is a decision stating otherwise.

As to the plea that Anwar was missed by his family and that the granting of bail would ease his lawyers's difficulties of consulting him in jail, Pajan ruled that these factors cannot be considered as exceptional circumstances.

Furthermore, he said the affidavit by Sungai Buloh Prison official Mohd Husin Mohd Mastan clearly stated that his family and lawyers were allowed to visit him in jail.

Pajan also accorded similar reasons in dismissing Sukma's bail application stating that the Indonesian-born businessman does not have the benefit of a first offender as he too had a previous conviction (for sodomy).

He said the fact that Sukma was granted bail and stay of execution by the High Court was not a criterion for the Court of Appeal to grant him bail.

"If we accept such a preposition then we would be failing in our task of exercising our discretion judiciously," he said.