Former finance minister Daim Zainuddin and businessman Halim Saad today obtained leave at the Federal Court to expunge all remarks made by Court of Appeal judge Justice Gopal Sri Ram in his judgment on the dispute between Fawziah Holdings Sdn Bhd and Metramac Corporation Sdn Bhd.

The court allowed separate applications for leave to act as intervener in the appeal after the parties to the suit - Metramac and Fawziah Holdings - did not object to the applications.

The appeal was filed by Metramac in its bid to set aside a RM65 million judgment awarded to Fawziah for loss of advertising rights.

Chief Justice Ahmad Fairuz Sheikh Abdul Halim who headed a five-member panel, had earlier managed to convince Fawziah Holdings - which had initially objected to the applications - to concede after repeatedly stressing that its interests would not be affected.

"I don't think that your client will be prejudiced if the court grants leave to them (Daim and Halim) to expunge the remarks," said Ahmad Fairuz who sat with Justices Pajan Singh Gill, Alauddin Mohd Sherif, Richard Malanjum and Augustine Paul.

In making the decision, the court also agreed to counsel Dr Cyrus Das - who represented Fawziah Holdings - who asked for the application to expunge to be heard together with Metramac's appeal.

"In the event Metramac fails to obtain leave to appeal (against the RM65 million judgment) at the Federal Court, then the applicants' prayers (to expunge Gopal's remarks) may be decided independently by this court," said Ahmad Fairuz.

The court then set March 27 to hear Metramac's application for leave to appeal.

Ahmad Fairuz also said the court would consider whether to reconvene the panel in view of concern expressed by Cyrus that Paul had previously heard substantial arguments relating to the appeal in related proceedings.

Daim and Halim are seeking to remove the statements made by Gopal who had alleged, among other matters, that Halim and his former business partner Anuar Othman had siphoned RM32.5 million from Metramac under the patronage of Daim who was then finance minister.

Immunity of judges

While hearing arguments by Daim's lawyer Cecil Abraham that his client has no other recourse to clear his reputation, Ahmad Fairuz said that he could take action against Gopal if he can prove the remarks were made in bad faith.

Cecil: This is unusual situation where the applicants (seeking to intervene) have no financial interest to the appeal. They were not parties to the dispute but yet the Court of Appeal saw it fit to make detrimental statements against them If they cannot act as interveners, they have no remedies whatsoever whereas judges have their immunity.

Ahmad Fairuz: The immunity is not absolute. Judges are not above the law. If you can prove mala fide (bad intention) on his part, you can still get to the judge.

Cecil: This would be an unusual and exceptional step to take.

Ahmad Fairuz; If it has to be done, it has to be done. I don't see why you cannot go against the judge. The option is open to you.

Cecil: It is something that we need to consider.

The lawyer further argued that the "unwarranted and irrelevant" comments had affected Daim's reputation as former minister and as an entrepreneur both domestically and internationally.

"As a result, my client's reputation had been seriously damaged and he had suffered considerable hurt, distress and embarrassment."

Horrified Halim

Halim's lawyer Tommy Thomas said his client was shocked and "absolutely" horrified" when he discovered that adverse statements had been made against him in a judgment involving a legal dispute in which he was not involved.

"He was not called as a witness in the dispute, he had never affirmed any affidavits and the pleadings made by parties made no reference to him. There was one passing remark against him by one of the witnesses at the High Court level, which was an absolute throwaway line," he said.

He said, although Halim was a stranger to the case, the Court of Appeal saw fit to accuse him of theft.

"He was accused of stealing RM32.5 million which had never belonged to Metramac. If it had never belonged to Metramac how could he had committed theft from the company? This is the injustice that had been committed."

He said if Fawziah Holdings believed that it had a strong case against Halim for theft, the company should have sued him so that he would be able to defend himself.

"Does the court now fold its arms and say that we have no power and jurisdiction to entertain a plea of justice? Halim Saad is entitled to justice as his reputation has been injured. It's the core principle of the justice system, common law and Malaysian legal system to do justice," said the lawyer.

Thomas stressed that the bid to expunge Gopal's (photo) remarks was not intended to challenge judicial independence.

"I am a strong believer of the independence of the judiciary and that judges' freedom of speech and expression must never be curtailed because they are the guardians of the judiciary. But that freedom comes with a high degree of responsibility.

"Now the responsibility has been broken and as a result, a person who is minding his own business - a stranger to a dispute - was injured when he was accused of stealing money which had never belonged to the company in the first place."

On Jan 12, the court had ordered Metramac - the concessionaire of the East-West Link Expressway and the Sungai Besi Expressway - to pay RM65 million to Fawziah Holdings for loss of advertising rights.

In his judgment, Gopal among others remarked that:

- Halim and Annuar had siphoned RM32.5 million from the Metramac account - and thereby committing an aggravated form of criminal breach of trust under the patronage of Daim.

- It was puzzling as to why Daim would use his power in favour of Halim, instead of channeling the funds to benefit the taxpayers, thereby suggesting that it was a personal favour from Daim to Halim as a result of their close ties.

Halim and Daim have denied the all allegations.