PUTRAJAYA (Sept 4): Tan Sri Mohamed Apandi Ali’s lawyers claimed that Tan Sri Lim Kit Siang's description of him having “aided and abetted” former prime minister Datuk Seri Najib Razak in relation to the goings on at 1Malaysia Development Bhd (1MDB), in an article in 2019, had painted a picture that there was then an on-going investigation on the former attorney general (AG) and put him in a bad light.
Rueben Mathivaranam, who appeared for Apandi in his defamation appeal at the Court of Appeal (COA) on Monday, said Lim's assertion in the article, which he repeated in subsequent others, suggested an imputation of guilt.
“The words “aided and abetted” in the Oxford dictionary means to assist an offender, whereas Apandi has never been subject to an investigation in the 1MDB or SRC International Sdn Bhd matter.
“What Lim's lawyers have alleged and was wrongly accepted by the High Court was of a lesser meaning of cover-up. There is no way that the words ‘aided and abetted’ in the ordinary meaning meant that for the general public,” said Rueben, who appeared with M Visvanathan.
They are submitting in Apandi’s appeal over the High Court's dismissal of the defamation suit Apandi brought against Lim over the latter's 2019 article titled, “Dangerous fallacy to think Malaysia is on the road to integrity”, which Apandi had deemed defamatory to him.
Then High Court judge Datuk Azimah Omar — now COA judge — had dismissed Apandi’s suit and observed that the former AG seemed disinterested and that his testimony were at times self-contradictory in relation to the suit and his own decision to clear Najib of corruption in January 2016, as well as the recounting of his meeting with Najib's purported "Arab donor".
Rueben further said Lim had relied on hearsay and speculation to derive his views, and said those words suggested that there was an on-going probe on their client in the 1MDB scandal.
The phrase carries three possible meanings
The phrase, Rueben said, carried three possible meanings, one of which was that his client was guilty, or was a suspect, or there were grounds for an investigation on him.
“What Lim suggested is a serious matter, as he was making an allegation of the plaintiff being probed, when there was no probe on him,” Rueben said.
The words suggested that Apandi was being investigated under Section 16 of the Malaysian Anti-Corruption Commission Act, Rueben said, as Lim had alluded to Apandi taking up the position as AG during Najib’s time as an inducement to clear the former premier.
“This is the twist in the article and another article by Lim written in August 2019, suggested this, which we find to be defamatory,” Rueben said.
He added Lim’s basis for the speculation was the existence of purported charges against Najib way back in 2015.
As such, the counsel felt that the High Court judge had erred and hence their client was entitled to general and aggravated damages.
When asked by the three-member appellate bench as to what the sum his client was looking at, Rueben said RM600,000 as general damages and RM200,000 as aggravated damages, in addition to costs of RM180,000.
When the suit was dismissed by the High Court, Apandi was asked to pay RM80,000 costs to Lim.
Kit Siang's lawyer: Apandi classified case as needing no further action despite his own misgivings
Lim’s counsel Sangeet Kaur Deo then told the COA that what the High Court decided was based on Apandi’s plead in his statement of claim, in which the former AG agreed to a lesser meaning that the imputation meant there was a purported cover-up.
The court, she added, accepted this narrative from Apandi’s testimony as well as from Apandi's own witnesses.
She cited as example a former deputy public prosecutor, who is now a Sessions judge who was part of the task force investigating 1MDB, had testified as Apandi’s witness that he had felt in January 2016 that there should be further investigation into Najib. Yet days after on Jan 26, 2016, Apandi held a press conference to exonerate Najib and classified the matter as needing no further action or NFA.
Sangeet said the defence witness, the former Malaysian Anti-Corruption Commission (MACC) special operations division head Datuk Bahri Mohd Zin, had also testified that the MACC had recommended further investigation. Another witness the defence called — lawyer Datuk Lim Chee Wee, a member of the MACC’s review committee at the time — had also testified that it was recommended to the AG to review its Jan 26, 2016 decision.
“This is clear evidence that the case should not be classified under NFA. Bahri even testified that one of the two charts provided by the MACC to the AG clearly showed the money flowed into the former prime minister’s accounts and this should have been investigated further,” she added.
Sangeet further told the appellate bench that Apandi himself had admitted he did not request for mutual legal assistance (MLA) to seek assistance from foreign jurisdictions on investigations concerning 1MDB, even though the MACC and police had asked him for it.
Under the MLA, only the AG can request assistance from foreign jurisdictions on investigations concerning the country. Hence the former AG, Sangeet said, was alleged to have a role in covering up the scandal by choosing not to investigate.
This means that the phrase "aided and abetted" used by Kit Siang was to indicate the abuse of his role and responsibility as an AG in choosing not to investigate, she said.
Sangeet said this can also be seen in Bahri’s testimony in the trial, when he acknowledged that there were draft charges made against Najib, yet Apandi, in his briefings to him, was only interested to know who had leaked them to the portal Sarawak Report.
“The issue highlighted by Lim is of public interest and importance," said Sangeet, adding the public outcry Apandi faced over his decision to exonerate Najib in 2016 was based on Apandi's own doing as he owed Malaysians an explanation, and that by not responding to them had in turn damaged his own reputation.
“We (on behalf of Lim) submit that there is no merit in the appeal and that it should be dismissed,” Sangeet added.
The bench, comprising judges Datuk Hadhariah Syed Ismail, Datuk M Gunalan and Datuk Azmi Arifin, fixed Oct 10 to deliver their decision.