Tony Pua gets top court nod to appeal against injunction on 1MDB video

Azril Annuar
Tony Pua is seen at the Federal Court in Putrajaya June 20, 2018. ― Picture by Azinuddin Ghazali

PUTRAJAYA, June 20 ― The Federal Court today gave leave to Tony Pua to appeal against an injunction won by former prime minister Datuk Seri Najib Razak on the Damansara MP's Facebook video regarding the 1Malaysia Development Berhad (1MDB) scandal.

Chief Judge of Malaya Tan Sri Ahmad Maarop who chaired the three-member panel said there were questions regarding the case that needed to be answered.

“This case involves questions of importance upon which futher argument is needed. It is the decision of this court that the application for leave to appeal is allowed as on questions one, two, three and six of the applicant submission,” he said.

The other judges on the panel were Datuk Seri Balia Yusof Wahi and Datuk David Wong.

Below is a list of questions the Federal Court will decide later:

1. Whether the test that an interim injuction in defamation proceedings laid down in The News Straits Times Press (M) Bhd v AIrasia Bhd (1987) is good law given the freedom of expression guaranteed by Article 10(1)(a), Federal Constitution;

2. Whether in light of Article 10(1)(a), Federal Constitution, an application for an interim injunction in defamation proceedings to restrain the further publication of impugned statements must be dismissed where the defendant has:

2.1 pleaded and particularised the defences of justification and fair comment on matters of public interest in his Defence; and/or

2.2 stated on oath, his belief as to the truth of the impugned statement, and his ability and willingness to justify the impugned statement.

3. Whether the fact that the Speaker of the House of Representatives had ex facie exercised powers under the Standing Orders of the Dewan Rakyat, precludes the entitlement of a plaintiff to establish at trial, the fact that the exercise of such powers was not bona fide, in private law proceedings that refer to such exercise of power;

6. Whether a court is entitled in private law proceedings to treat the fact of the Attorney General not having commenced prosecution under Article 145(3), Federal Constitution and/or the explanation for such decision as exonerating the impugned conduct, and such as to allow the court to further conclude by way of judicial notice under Section 56, Evidence Act 1960 that not wrongdoing was committed.

In the video, Pua had claimed that a private member’s Bill to amend the Syariah Courts (Criminal Jurisdiction) Act 1965, better known by its Malay name RUU355, was a ploy to distract the public from the 1MDB financial scandal in 2017.

Pua’s counsel Datuk Malik Imtiaz Sarwar later told a press conference that the judges’ decision was on the basis that there are critical questions to consider which must be answered.

“We have been given leave to appeal on the basis that there are important questions to consider, essentially the questions go to the right of a person to free expression and the implications of the former Attorney-General having decided not to prosecute the former prime minister.

“So the court wants to understand the legal implications of this in the context of an injunction to stop someone from expressing his view as guaranteed by the Constitution especially someone of Mr Pua’s position, who is an M, and is a vital part of the administration system,” the lawyer said.

Malik said the hearing date will be fixed later.

Pua told reporters that the judges’ decision showed his case had merit, which he deemed to be based om the “uproar of the legal fraternity” when the Court of Appeal made a decision based on a judicial notice of a press statement given by the then Attorney General Tan Sri Mohamed Apandi Ali.

He was asked if Pakatan Harapan’s electoral victory and his own standing in the current administration had any bearing on the top court’s decision to grant him leave today.

“I’m grateful the Federal Court is allowing leave, it’s just leave for application, it’s not decision itself for this issue to be decided in depth,” said Pua.

On April 6 last year, Pua had uploaded a video titled “BN abandons all Bills to give precedence to PAS RUU355 Private Member’s Bill” which Najib claimed was defamatory. On April 21 2017, the then prime minister had slapped Pua with a defamation suit.

Upon a High Court order, the video was also removed from Pua’s Facebook page on April 24.

Najib had claimed the video was directed at him and alleged it was done with malice.