PUTRAJAYA (July 22): Damansara MP Tony Pua today failed to obtain leave from the Federal Court to appeal against the decision made by the Court of Appeal that allowed the withdrawal of former premier Datuk Seri Najib Razak's defamation suit against him.
A three-member bench led by Federal Court judge Datuk P Nalini ruled the application for leave (permission for full merits to be heard) does not meet the requirements under Section 96 of the Courts of Judicature Act 1964 (CJA).
“The crux of the appellant's matter is that he had suffered prejudice because the interim injunction was given against him by the High Court and then suddenly the former premier decided to withdraw the suit.
“This is to redress the appellate court judgment where it cited the then Attorney-General (Tan Sri Mohamed Apandi Ali) had cleared the then PM and he had stood vindicated and left the appellant (Pua) to be looked as a liar. The Federal Court (another bench) had granted leave to hear the injunction appeal tomorrow,” she said.
Justice Nalini said the law governing withdrawals of cases is there, and the case for discontinuance at the High Court and the Court of Appeal that is granted, does not meet the requirements under CJA for the appeal to be heard on its full merits.
The bench, which also included Justice Datuk Zabariah Mohd Yusof and Datuk Rhodzariah Bujang, then dismissed Pua's appeal and ordered the Damansara MP to pay RM20,000 costs to Najib, who was represented by counsel Datuk Wira Mohd Hafarizam Harun.
Datuk Malik Imtiaz Sarwar, who represented Pua, had earlier argued that his client was entitled to seek redress in the Court of Appeal decision as another bench had earlier upheld the interim injunction and this had prejudiced the three-term MP.
Pua was also present in court today.
“The injunction infringes my client's right to freedom of expression. When leave was granted by the Federal Court to challenge the injunction, there was no indication that the suit was to be withdrawn until the matter came up for case management at the High Court.
“Leave should be granted based on public interests in the matter,” he said.
Najib, who is also the Pekan MP, filed the suit in his personal capacity against Pua in April 2017, where he alleged Pua made defamatory statements against him via a Facebook live video on the tabling of the amendment to the Syariah Courts (Criminal Jurisdiction) Act 1965 — which is also referred to as Act 355 — by PAS, and connected it with 1Malaysia Development Bhd (1MDB).
Najib claimed the video clip was uploaded by Pua or his agents on Facebook with the title "BN govt abandons all bills to give precedence to the PAS-led private members Act 355", and it could be accessed widely and freely on the Internet.
Following the suit, the Kuala Lumpur High Court had on Aug 4, 2017, granted Najib an injunction to prevent Pua from continuing to make similar statements and air the video clip, and this decision was upheld by the Court of Appeal where Justice Datuk Yaacob Md Sam wrote that the court takes judicial notice that the Pekan MP is free of any crime.
Hafarizam, meanwhile, in responding to Malik's submission, said the law of discontinuance of action is settled and that further arguments on the purported injunction on Pua can be made before the Federal Court tomorrow.
“Furthermore, this application for leave to appeal is on an interlocutory issue and arose from an interlocutory decision and the court should not grant leave.
“Besides this, Justice Yaacob's decision was premised on the then AG (Apandi) [clearing] Najib of any wrongdoing in 1MDB and SRC [International Sdn Bhd]. However, now he has been prosecuted to face charges in SRC, the 1MDB case and the 1MDB audit tampering case,” he said.
For these reasons, Hafarizam said Malik's application in seeking leave ought to be dismissed.
Tomorrow's appeal by Pua on the injunction is also in relation to another appeal made by the New Straits Times and Utusan Malaysia following a suit filed by Lim Guan Eng when he was Penang Chief Minister.