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
    pillai@m...

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