PETALING JAYA: A retired judge says the Court of Appeal is wrong to disallow Tony Pua’s appeal to lift an interim injunction in response to the prime minister’s defamation suit, as the Petaling Jaya Utara MP has pleaded the defence of justification.
Gopal Sri Ram said the settled practice of the court was to refuse an interlocutory injunction restraining further publication where the defendant either pleads or says at the injunction hearing that he intends to plead justification or fair comment.
“In this case, the defendant (Pua) pleaded justification. Therefore, the Court of Appeal should have corrected the error by the High Court by setting aside the injunction,” he said.
The former Federal Court judge said this in response to the appellate court’s written judgment on Friday that prime minister Najib Razak was entitled to the injunction over a video deemed defamatory because Pua’s defence was bound to fail.
Justice Yaacob Md Sam, who delivered the written grounds, said this was because Attorney-General (AG) Mohamed Apandi Ali had cleared Najib of any criminal offence in relation to 1MDB.
He said the bench took judicial notice that the AG’s clearance of Najib of any criminal wrongdoing was akin to the undisputed fact of the “sun rises in the east and sets in the west.”
Sri Ram said it must be noted that the Court of Appeal acted on the decision of the AG clearing Najib of any criminal offences.
“When the AG says that an accused or suspect has not committed an offence, he is applying the beyond-reasonable-doubt test.
“In other words, in his mind he feels that the ingredients of cheating, criminal breach of trust and corruption against the suspect cannot be established in a court of law beyond a reasonable doubt,” he said in a statement.
However, the defamation suit was a civil case and governed by a balance of probabilities only, which was a much lower test, he said.
Therefore, Sri Ram said, although the AG may not be able to prove his case against the suspect beyond a reasonable doubt, the defendant (Pua) in a civil case of defamation may be able to prove the same charge on a balance of probabilities.
“With respect, this point was missed by the Court of Appeal,” he said.
Sri Ram said the practical strength of a defence of justification as raised by Pua was never tested at the hearing of the interim injunction.
The DAP publicity chief in his defence stated that he had the honest and absolute belief that the impugned words were true and would be proved in trial.
Principle espoused in 1960 judgment
Sri Ram said English judge Lord Denning in Fraser v Evans (1969) had held that the court would not restrain the publication of an article, even though it was defamatory, when the defendant says that he intends to justify it or make fair comment on a matter of public interest.
“The right of free speech is one in which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done,” he added.
Sri Ram said the courts must follow established principles and bending them would set a dangerous precedent.
“The problem with the law is that it is flexible, but only within the limits of established rules. If judges bend the law beyond those limits, it has the nasty habit of snapping back to harm the very institution that exists to preserve and protect it,” he added.
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.
It referred to PAS president and Marang MP Abdul Hadi Awang’s tabling of a bill to amend the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355) in the Dewan Rakyat on April 6 last year.
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 issue and the RM2.6 billion found in the private accounts of Najib.