updated version The Federal Court today allowed an application by veteran journalist MGG Pillai to review an earlier decision which upheld a RM2 million defamation award given against him over a suit by business tycoon Vincent Tan.

The court, by a two to one majority, agreed that a new Federal Court panel will have to convene to decide on Pillai's appeal against the award. No date has been fixed for the new hearing.

Pillai's ground for the review was based on the claims that the Federal Court, which heard his appeal in 1998, could have acted in bias following a known friendship between the then Chief Justice Eusoff Chin and counsel VK Lingam who acted for Tan. Eusoff was in the Federal Court panel which heard the appeal.

He also complained that when the Federal Court released its written judgment in 2000, it was done after the retirement of justice Chong Siew Fai, who was in the original panel.

Pillai was found guilty of defaming Tan by the High Court in 1994 in an article which he wrote for the Malaysian Industry magazine. Pillai and several other defendants were ordered to pay Tan damages amounting to RM10 million. Pillai's share was RM2 million.

Pillai's appeal to the Court of Appeal was dismissed in 1995.

Today's decision was favoured by justices Siti Norma Yaakob and Haidar Mohd Noor while Justice Steve Shim dissented.

In her 19-page judgment, Siti Norma said the decision given by Eusoff on June 12, 2000 was delivered in breach of Pillai's substantive right to consent to the judgment being delivered by two remaining judges since Chong had already retired.

"Since the applicant's accrued interest has been violated in this case leading to a miscarriage, it follows that he is entitled to have his appeal re-heard before another panel of this court," she said.

No consideration

She also said that the issue of alleged bias by Eusoff merits no consideration from the court in making its decision.

"The issue here is not so much the composition of the panel hearing the case but more so on the deprivation of a substantive rights that had accrued to the applicant (Pillai)," she added.

She said the remaining judges should have obtained Pillai's consent before delivering the reserved judgment even though it can be considered as a majority judgment.

Like Siti Norma, Haidar said that Eusoff's judgment was defective as Section 78 of the Court of Judicature Act states that the court must have the consent of both parties to give judgment in the absence of one of the judges.

This has caused injustice to the applicant and the court can resort to its power under Rule 137 of the Rules of the Federal Curt 1995 to set aside the earlier judgment and order for a re-hearing of the appeal.

Cannot be true

In his dissenting judgment, Shim said it was clear that all the information pertaining to Eusoff's alleged misconduct had been available to Pillai him during the interim period between the date the judgement was reserved on Jan 13, 1998 and the date of judgment on July 12, 2000.

"There was a lapse of 30 months. The applicants did not rely on the information coming to light after judgment was delivered.

"In the circumstances, the applicant's allegations that he did not have full knowledge of the facts giving rise to complaints cannot be true," he added.

He said that it cannot be disputed that from the onset of the appeal, Pillai had intended to challenge the qualifications of Eusoff but was advised against it by his counsel Karpal Singh apparently on the grounds of insufficient merit.

"Given this development it is certainly strange for the applicant to allege that he did not have knowledge of the right to object or challenge on the matter of the disqualification of Eusoff Chin," he said.

Met outside the courthouse later, Pillai said today's decision was not a victory but a mere "stumble".

"I am not relieved as there is still the Federal Court rehearing. However, I have no illusions that justice will prevail.

"It is easier to draw blood from a stone than RM2 million from Pillai," he stressed.