Ex-AG’s RM10m defamation suit appeal: Positive assertion of guilt, wrongdoing by claiming Apandi ‘aided and abetted’ 1MDB scandal, court told

PUTRAJAYA, Sept 4 — Words used by veteran DAP lawmaker Tan Sri Lim Kit Siang in a 2019 article against former attorney general (AG) Tan Sri Mohamed Apandi Ali had amounted to positive assertion of the latter’s wrongdoing and guilt in the 1Malaysia Development Berhad (1MDB) scandal, the Court of Appeal heard today.

Today was initially fixed for hearing over Mohamed Apandi’s appeal against a High Court’s dismissal of his RM10 million defamation lawsuit against Lim over a published article on the 1MDB scandal.

At the onset of hearing, lawyer Rueben Mathiavaranam said the lower court judge had erred in her ruling after failing to ascribe the impugned words — “aided and abetted” — in the current appeal to its natural and ordinary meaning.

Reuben argued that the words were clear without any obfuscation, giving the impression that his client participated, encouraged, or assisted the offenders in the wrongdoings pertaining to the 1MDB scandal.

“The defendant in this case has made a positive assertion in the impugned article that the plaintiff aided and abetted in the 1MDB scandal and is being asked to explain why he did so.

“Her Ladyship had instead allowed its Lesser Meaning ascribed by the defendant which was not reasonable,” he told Court of Appeal judge Datuk Hadhariah Binti Syed Ismail who was chairing a three-member bench including Justices Datuk M. Gunalan and Datuk Azmi Ariffin.

He also argued the learned High Court judge had committed an error in law when she allowed the defendant’s reliance on conventional qualified privilege which was inapplicable in the current case.

“Qualified privilege ought to be confined to private communications as opposed to publications made to the whole world except in cases where there are special facts,” he said.

In their reply, lawyer Sangeet Kaur Deo, who is representing Lim, said it was imperative for the court to look at the entire article which was three-pages long instead of selected words of the paragraph submitted by the plaintiff.

She said the context of the entire article highlighted what her client believed was a dismal failure of personalities of power, including the plaintiff himself and former Dewan Rakyat Speaker Tan Sri Pandikar Amin Mulia in suppressing or investigating the 1MDB scandal.

“By looking at the full paragraph in question, with also an understanding of the entire article, what becomes abundantly clear is the context upon which the impugned statement was made.

“The plaintiff is not allowed to pick and choose parts and sentences of the article it wishes to rely on,” she said.

Sangeet also said she disagreed with the plaintiff’s submission that there is only one interpretation of the words “aid and abet” since the words were in fact an entire paragraph consisting of one continuous line.

Given the context presented by the entire paragraph, Sangeet said “aiding and abetting” may take many forms and is open to differing degrees of accountability, including the plaintiff’s abuse of his role as then AG in the present appeal.

“A pure dereliction of duty to Malaysians by wilfully turning a blind eye to evidence (or lack of) of a purported Saudi donation presented to him and to various calls to engage in Mutual Legal Assistance; and refusing to take steps to meaningfully pursue a line of enquiry into the 1MDB scandal,” she said.

Thus, she said the learned High Court judge was therefore fully justified in her acceptance of the Lesser Meaning assigned by the defendant, which warrants no appellate intervention whatsoever.

She also said the occasion of privilege has arisen by virtue of Lim’s role and duty as a federal lawmaker, which warrants no additional requirement of having to plead ‘special facts’ in the reliance of the Qualified Privilege defence as argued by the plaintiff.

“That position is quite unlike the duty of an elected Member of Parliament, wherein it is intrinsic within the duties of an elected representative of the people to raise matters affecting the interest of the electorate at large.

After hearing submissions from parties, the court then fixed October 10 to deliver their decision.

Tan Sri Lim Kit Siang arrives at the Palace of Justice in Putrajaya September 4, 2023. Photo by Hari Anggara.

What is the case

In his suit filed on July 5, 2019, Mohamed Apandi claimed that on May 6, 2019, Lim had written and caused to be published an article titled “Dangerous fallacy to think Malaysia’s on the road to integrity” in the Malaysiakini portal.

He claimed the alleged libellous words in the article implied that he was involved in crime and had abetted in the 1MDB financial scandal, was a person with no morals and integrity, was unethical and had abused his power when he was the AG.

Mohamed Apandi, who was the AG from July 27, 2015, to June 4, 2018, contended that the libellous words were untrue and written with the intention of tarnishing his image and credibility as a former Malaysian AG for cheap publicity.

On May 23 last year, the Kuala Lumpur High Court dismissed Mohamed Apandi’s suit against the DAP veteran, ruling that the former lawmaker was justified in questioning Mohamed Apandi’s dismissive attitude to act on 1MDB and subsequently exonerated Datuk Seri Najib Razak of any criminal wrongdoings.

Mohamed Apandi filed the appeal against the High Court’s decision a day later.