Since last December, I have been waking up to, breathing and going to bed with nothing but ABU! ABU! ABU!so much so that, last Monday, when I returned from overseas and, finding out that the Musa vs DSAI defamation trial was to kick off the following day, I felt a little gratitude that, I might have a brief respite from work for a day or two to partake of a once familiar ‘court room’ excitement, albeit from the public gallery.
Yes, I was going to make time to sit in on the trial to witness first hand the demeanour of the plaintiff as he was subjected to what I expected would be gruelling and relentless questioning by cross-examining counsel to get at the truth to the issues before the court.
Alas, as had happened with my plans to join other Spurs fans to watch the MU vs Spurs game a little over two weeks ago, lack of sleep over the last few days put paid to my hopes to witness this drama unfold.
Never heard the alarm, woke up well after 10am Tuesday morning, quick shower and with a cup of coffee in hand, thought I’d do a quick check on the news before dashing off to court.
The case was no more.
At least the MU vs Spurs game played out to the end, even if I missed the sheer joy of watching that famous victory with fellow Spurs fans at the usual hang out ( sorry Jaya and other ManUrites, just could not resist it ).
Musa had thrown in the towel!
Of my 20 years of legal practise, almost 15 years was in the area of defamation law, mostly acting for defendants and, so far as my practise went, withdrawal of suits by the plaintiff were a rarity.
Off hand, I can only recall one instance when the plaintiff withdrew the action on the morning that the trial was due to start.
The plaintiff had alleged that the defendant had published the allegedly defamatory matter to one individual, a Mr. Z.
The defendant denied publishing the allegedly defamatory matter to Mr. Z, meaning that the plaintiff would have to call Mr. Z as a witness to prove publication.
3 weeks before the trial date, Mr. Z died.
When cases are settled because the plaintiff has accepted a proposal from the defendant, even if there are no dollars and cents involved in the settlement, it would be common for, at the very least, some statement of regret, on the part of the defendant for the publication of the words complained of and, often, some undertaking not to repeat the libel complained of.
If, however, it is not so much a matter as the case being settled in the manner I have outlined above, but a withdrawal of the action of the plaintiff, based on my own experience, I can only think of only 3 plausible reasons.
First, some extraneous considerations, like pressure being brought to bear on the plaintiff from parties not named in the suit but somehow connected with the issues, or who might be adversely impacted by the finding of the court.
Second, when the case for the plaintiff has been so badly prepared that it is doomed.
Finally, when the defendant’s case is on solid ground, and the plaintiff, and his counsel, well know this.
Now, what was Musa bitching about in this defamation case that he filed in relation to statements by Anwar in a police report dated 1st July, 2008?
In gist, that Anwar had alleged his involvement in Anwar’s black eye beating, that Musa had been implicated in the falsifying and fabrication of the report of Hospital Kuala Lumpur pathologist Dr Abdul Rahman Mohd Yusof’s relating to Anwar’s ‘black eye’ injury and its probable cause, and that Musa had been involved with the fabrication of evidence adduced at Anwar’s corruption and sodomy trials in 1998/1999.
And in all of these, Anwar contended that Musa was in cahoots with Gani Patail.
Whilst Musa took legal recourse, Gani, it seems, was content to just sit back and do nothing.
What line of defence did Anwar take to Musa’s complaint?
No doubt, the usual array of defences in the alternative but, the most significant, in my view, was that he would justify the ordinary and natural meaning of the words complained of.
In other words, Anwar would prove that what he had said in his police report, and of which Musa, in his suit, complained as being both untrue and defamatory of him, was in fact and in substance true.
Now, where a defendant pleads justification and proceeds at trial to try and prove this defence, and fails, he will very likely suffer a double whammy.
Damages for the publication complained of, and further damages for adding insult to injury by pursuing the defence of justification.
In other words, you do not pursue this defence unless you are on sure ground.
I have it on good authority that had the trial proceeded, justification was the principle defence that would have been taken to the plaintiff.
Now the events that unfolded outside court after the case was withdrawn were bizarre in the extreme and, for me, quite telling.
According to Malaysiakini, Musa said that the filing of the suit was premised on some ‘misunderstanding’.
“We have discussed and revisited the point of contention in this civil suit. I am made to understand there is a misunderstanding brought by certain people, resulting in this case related to the black-eye incident being brought to court today.” , Musa is reported to have said.
Brought about by certain people?
I regard both counsels acting for the plaintiff as friends, but more importantly, I think both enjoy reputations with fellow members of the Bar as competent and sound practitioners of the law.
Musa’s next statement turned out to be most contentious.
“Hence, I accept the settlement outside court as proposed by them (the defendants)”.
Ah, so the withdrawal turned on a settlement as proposed by the defendant.
Somewhat like the first scenario I depicted above.
But, if indeed so, that this was a resolution upon a proposal from Anwar, was no statement of regret for the words complained of sought from the defendant?
No undertaking to the plaintiff, or better, to the court, to not repeat the words that the plaintiff felt had so reviled him that he was moved to go to court to exonerate his name?
It would seem not.
Malaysiakini, in another report later to that referred to above, reports that lawyers for Anwar, in a press release, refuted Musa’s claim that the withdrawal of the suit followed his acceptance of a proposal for settlement put forth by Anwar.
“The withdrawal was initiated by Musa or his representative. At all times, Anwar was ready to proceed with the case. The withdrawal against our client was unconditional and there was no out-of-court settlement as alleged by Musa. Our client is satisfied with the unconditional withdrawal and hence did not seek for costs” , the statement read.
And then, for me at least, the fatal blow that puts paid to Musa’s assertion of a settlement at the instance of Anwar.
Malaysiakini goes on to report that “Anwar’s lawyers said Musa’s withdrawal had vindicated their client, who is standing firm by his police report”.
This statement, in my view, is nothing short of an assertion by Anwar, through his lawyers, that he stands by and reiterates the truth of what he had said in his police report that became the basis of the suit, now said to have been settled by Musa.
Anwar pleaded justification to Musa’s complaint.
He was prepared, I am reliably informed, to take that defence full throttle to trial.
And now, after that trial is aborted, duly withdrawn, Anwar reasserts the truth of the words complained of.
Case filed due to a misunderstanding?
Withdrawn, the defendant’s proposed settlement having been duly accepted?
Only for the defendant to visit upon the plaintiff the very same charge, even before the inked ‘kes dibatalkan’ on the court file has fully dried?
Were strangers to the suit, working with unseen hands, behind the withdrawal?
Or had the plaintiff sought to avert the total and irredeemable annihilation of what little regard any uninformed Malaysian might still have for him, by the unavoidable disclosure, in cross-examination, of the sordid details of his guilt?
Case closed without judgment pronounced?
Before Justice Asmabi Mohamad perhaps, but not so in the court of public opinion.
If from the withdrawal of the suit last Tuesday spews forth the foul stench of Musa’s sins, the odour emitting from Gani’s chambers is starkly similar.
Well, perhaps a tad worse.