The High Court will decide tomorrow whether Prime Minister Mahathir Mohamad should take the witness stand in the sodomy trial of his former deputy, Anwar Ibrahim.

Judge Arifin Jaka will also decide if Mahathir can file an application through his counsel to set aside the subpoena served on him last October, which requires him to testify in the trial. If Mahathir made the application, he has to show that he is not a material witness in the trial.

Defence counsel Sankara Nair, this afternoon filed another application to subpoena Mahathir on Anwar's behalf. The first subpoena was obtained by Gobind Singh Deo, the counsel for Anwar's adopted brother Sukma Dermawan Sasmitaat Madja.

If the court decides to allow Mahathir to file an application to strike out the subpoena, the defence would have to state in open court the relevance of the premier's testimony to the ongoing sodomy trial, Arifin said.

"This would mean that we will have to reveal our case which is something we just cannot afford to do," Nair told malaysiakini.

Lead prosecutor Abdul Gani Patail, invoking S136 of the Evidence Act, raised objections to the subpoena and said evidence to be sought from Mahathir is irrelevant to the trial. Under this section, the judge will have to rule whether evidence from a particular witness is relevant to the proceedings.

"There is no evidence that would connect the Prime Minister to the accused (Sukma). No evidence to show that the Prime Minister is a material witness in the sodomy act. He was not at the scene," Gani Patail said.

Failing to conceal his irritation, defence counsel Karpal Singh snapped: "It is not for the prosecution to state what evidence the Prime Minister is expected to give for the defence."

Arguing there is more than sufficient relevance, Karpal pointed out that an earlier witness, police officer SAC Musa Hassan, testified that the principal witness in the sodomy trial, Azizan Abu Bakar, met with Mahathir. Azizan, in his evidence, had confirmed the meeting.

Karpal, raising his voice, accused the prosecution of trying to assist Mahathir by going the extra mile to prevent him from testifying.

"There is more than sufficient relevance for Mahathir to testify. So, why the fright? Why the clambering to the Prime Minister's assistance to ensure he does not come to court?"

Repeatedly saying that he is "not acting for the Prime Minister", Gani Patail reminded the court it has the power and is in fact duty bound to ask the defence to show the relevancy of Mahathir's testimony.

The two-hour heated legal submissions from both sides in the afternoon session of the court drew remarks and loud sighs from the public gallery, forcing Arifin to reprimand the spectators and journalists.

Anwar, visibly amused, kept looking back from the dock to smile at wife Wan Azizah Ismail and family members.

The prospect of seeing Mahathir meeting Anwar for the first time since the sacking of the former prime-minister-in-waiting has drawn a lot of public interest, resulting in a long queue outside the courthouse this morning. The court was packed with about 80 curious observers.

Anwar and Sukma are charged with sodomising Azizan Abu Bakar "on one night between January and March 1993 at 7.45pm." Sukma is also charged with abetting and aiding Anwar to sodomise the former driver.

Earlier this morning, lead counsel Christopher Fernando said they would appeal against the ruling by Arifin if he rejects the subpoena.

Meanwhile, Gobind told the court he would examine whether Mahathir's statement on his need to appear in court made today to reporters after an official function was contemptuous.

"I understand the Prime Minister made a statement this morning saying he need not appear in court. Even before your lordship has decided, he had already made up his mind," said Gobind.

Arifin responded, "It is a question of law. The court has the power. I will decide."

Gobind said, "I want to look at the statement to see if it was contemptous, and if necessary take it up in court."

According to Bernama, Mahathir told reporters this morning that he would present himself at the sodomy trial if the court rules that it is relevant for him to testify.

"If it's relevant of course I will have to go. That is the law. There is nothing I can do about it," he said.

But he expressed hope that his testimony would be relevant to the case.

"If it is not relevant to the case and they just want to make a political show of it, I don't think it is being very fair," he added.

Anwar is serving a-six-year jail term for abusing his power while in office and stands trial for sodomy and sexual misconduct. The one-time heir apparent had denied all charges and says they were trumped up to end his political career.