PUTRAJAYA: An interim injunction given to Prime Minister Najib Razak over a video deemed defamatory is maintained because Petaling Jaya Utara MP Tony Pua’s defence does not hold, the Court of Appeal said.
Jusice Yaacob Md Sam said this was because the Attorney-General (AG) Mohamed Apandi Ali had cleared Najib of any criminal offence in relation to the so called 1MDB fiasco.
He said the appellate court was of the view that High Court judge Mohd Zaki Abdul Wahab did not err in fact or law in exercising his discretion in favour of allowing the injunction against Pua.
“The reason being the defences set up by the defendant (Pua) could not in the light of the evidence, especially of the AG’s decision, succeed. We see no merit in the appeal,” said Yaacob who delivered the written grounds which was made available to the media today.
Pua had raised the defence of justification, fair comment and qualified privilege in response to Najib’s defamation suit as the DAP publicity chief “had the honest and absolute belief that the impugned words were true and will be proved in trial”.
However, Yaacob said, on the whole circumstances of this case, the bench was satisfied that this was a proper case where such interim injunction should be granted.
On Feb 14, the bench chaired by Abang Iskandar Abang Hashim, Zaleha Yusof and Yaacob, delivered its oral decision after having heard submissions from lawyers on Jan 26.
Yaacob said Najib’s lawyer Mohd Hafarizam Harun had urged the court to take judicial notice that the AG had cleared the prime minister in relation to the 1MDB fiasco and this fact was well publicised in the media.
“We are of the view that the essence of judicial notice is that there is a dispensation of the otherwise requirement of proof to be adduced in court to assert the factual circumstances. Once a fact is judicially noticed by the court, no proof needs to be adduced to prove its existence,” he added.
Yaacob said the facts to be judicially also noticed existed in the pleadings of the prime minister in response to Pua’s defence.
Pua in his defence stated that RM2.6 billion (US$681 million in 2013) was diverted from state investor 1MDB while Hafarizam told the bench during submission that the MACC in August 2015 had informed the public that the money was a donation to the prime minister.
Yaacob said the AG, at a press conference on Jan 26, 2016, confirmed the money was a gift from an Arab royal family.
“Such a decision by the AG is within the framework of our Federal Constitution under Article 145. That fact had, therefore, been established without the need of further formal proof of the same by a witness,” he said in the 31-page judgment.
On Aug 4, Zaki dismissed Pua’s application that the video should remain on his Facebook page to be viewed by the public pending the outcome of Najib’s defamation suit.
Najib, in his statement of claim filed on April 21, said a two-minute 21-second video, entitled “BN abandons all Bills to give precedence to PAS RUU355 Private Member’s Bill”, was uploaded on Pua’s Facebook page.
Najib said the live video was directed at him and was done with malice and bad intention to defame him.
Further, he said, Pua had also uttered statements in the video that the tabling of the bill was a charade to divert attention from the 1MDB fiasco and the RM2.6 billion found in the private accounts of Najib.