The Param Immunity- Much Ado About Nothing |
That the International Court of Justice's advisory opinion that the UN
special rapporteur, Dato' Param Cumaraswamy, had immunity and therefore
could not be sued for statements within his rapporteurial competence was
never in doubt except, until a few days, the Malaysian judiciary. When
the United Nations and the Malaysian government referred the matter to
the ICJ, they agreed to be bound by its opinion. But Malaysian courts,
in high dungeon, insisted it did not them. Irrelevant questions of
judicial independence and questionable legal views that went against the
corpus of international law and relations the judges raised and accepted
proved, beyond their ignorance, a rogue and pariah Malaysia in the
making. It insisted the ICJ advisory, which Malaysia had agreed to be
bound by, was in its eye nothing more: an advisory which it could
accept or reject as it thought fit. The government's solemn promise did
not bind the judiciary, it insisted. This mockery of judicial processes
put into doubt Malaysia's own territorial disputes, with Singapore and
Indonesia, now before the World Court. If Malaysia would not accept the
ICJ's advisory on the Param immunity, would it have accepted an ICJ
advisory which went against Malaysia's claim to Pedro Branca and the
Sipadan and Litigan islets? But once the Malaysian accepted to be bound
by a Word Court advisory the matter rests there. That is what Judge
R.K. Nathan decided, as other judges who heard the matter should have,
that Dato' Param had immunity.
Well-connected lawyers and business men, who subborned the
judiciary to demand damages in the hundreds of millions from those they
disagreed with. But they got stuck with Dato' Param. The trend began
with Tan Sri Vincent Tan's defamation action against a Malaysian
business magazine and its writers, in which he demanded, without proof
of any kind, damages for RM20 million, and the judge offered him half
that. (Later, it was alleged that Tan Sri Vincent's lawyer, Dato' V.K.
Lingam, yes he who is the holiday companion of the chief justice, Tun
Eusoff Chin, and the sttorney-general, Tan Sri Mohtar Abdullah, wrote
Judge Mokhtar Sidin's judgement.) The Court of Appeal accepted he had
the right to demand such damages as general damages, and the court was
right to award such damages. Now, Judge Nathan finds, in a case last
week, that while there was libel, the important question was if that
libel caused damage. This is how, until the Vincent Tan case, libel
damages were assessed. This is the clearest sign of a judicial return
to sanity I have noticed in the past six years. But would Judge
Nathan's decision be what it is if Dato' Lingam or his brother, Dato'
Sivaparanjothi, was the plaintiff's lawyer. At one time, no; now,
certainly. The winds of change now waft through the corridors of the
judiciary. The Federal Court decision on the Vincent Tan case would be
heard next Thursday.
Judge Nathan, in the Param case, says his decision is not binding.
How could it not be? There are at least two other actions outstanding
against Dato' Param over his comments published in the magazine. The
judge suggests that the arguments must be argued afresh before him. That
is, in my view, a saving grace, that Dato' Param should not be let off
easily. I dare say that the plaintiffs, whould they want to appeal this
decision to the Court of Appeal, it would be given equally short shrift.
Be that as it may, it marks clearly the Malaysian judiciary readiness to
return to sanity. This clearly gives Dato' V.K. Lingam a headache.
Used to having his way around the courts, he finds himself isolated.
His costs for an action the Bar Council took against him to discipline
him. The Federal Court reduced it by 88 per cent, with an additional
RM50,000 in court fees. That he could demand such costs is itself
remarkable. But really not, if you look at it closely. The Bar was
perceived the judiciary's enemy, and any move to cut it down to size,
especially by people like Dato' Lingam, was encourage. One need not add
that a key personality in this disciplinary proceedings, who dismissed
the Bar Council proceedings was the same Judge Mokhtar Sidin whose
judgement Tan Sri Vincent's counsel, Dato' Lingam, wrote.
There are other straws in the wind. Judge Nathan recuses himself
from a case because he acted for the plaintiff in a motor accident case
30 years earlier. No one remembered it, but he stepped down. Why then
did he sit to hear a summons in chambers Dato' Lingam brought in
circumstances that misled the court, wasted the court's time and was in
clear contempt. Judge Nathan should have since Dato' Lingam action was
against his nephew, Ganesh Sahathevan. He did not. He should have
hauled Dato' Lingam for what he did. He did not. He should have
stepped aside last week when some MIC women sued a Tamil newspaper. He
had been -- and not 30 years ago -- legal adviser to the MIC president,
Dato' Seri S. Samy Vellu. Such actions as the MIC women's are, in
reality, proxy fights between Dato' Seri Samy Vallu and his detractors.
He did not. Be that as it may, Judge Nathan's decisions which bring the
judiciary back on track must be applauded. Such actions slots the
judiciary back into the Malaysian consciousness, from whence it
disappeared since the then Lord President, Tun Salleh Abas, was drummed
out of his own court in 1988.
M.G.G. Pillai |