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Monday, October 31, 2016

NFC wins suit against Rafizi, claim against Malaysiakini dismissed

The Kuala Lumpur High Court today ruled that Pandan MP Rafizi Ramli had defamed National Feedlot Corporation Sdn Bhd with regard to his statement of "using government funds as leverage to gain loans for eight properties".
Judicial Commissioner Azizul Azmi Adnan however dismissed NFC and its chairperson Mohamad Salleh Ismail's claim for damages against Malaysiakini for reporting it.
The PKR vice-president was ordered to pay RM150,000 to Salleh and RM50,000 to NFC.
Meanwhile, the court ordered NFC and Salleh to pay Malaysiakini a sum of RM50,000 as costs.
In an immediate reaction, Malaysiakini editor-in-chief Steven Gan said the judge has rightly taken cognisant of the duty of journalists to report matters of deep public interest.
"More so, this was on a press conference called by an elected representative of the Parliament, and we have published the views of NFC in the same report on the same day.
"As the judge said, Malaysiakini was both fair and reasonable in our reporting. Today is a great day not only for Malaysiakini but for all journalists in Malaysia," he added.
Rafizi indicated outside court that he will consider appealing today's decision after considering which areas of submission which could be considered in the appeal.
"I will inform the media when the appeal to the Court of Appeal is made.
"However, I believe the decision would not change the perception of society towards the NFC scandal following the revelations made and for the time being I take the stand of protecting their responsibility towards the use of public funds which has to be protected at all costs."
Azizul in his judgment said the statement made by the Pandan MP has the effect of lowering the estimation of the plaintiffs in the eye of the public.
The judicial commissioner said Rafizi's statement had used the words “diselewengkan” (misappropriation).
“It is my view that misappropriation is only an approximate translation of diselewengkan and that this term in the national language contains a connotation of dishonesty beyond mere impropriety,” he said.
The word is defamatory of the plaintiffs, Azizul said as it suggested that public funds had been spent in the purchase of properties in the private names of the directors of the second plaintiff.
“In other words, a reasonable reader reading this paragraph would surmise that public funds has been used (a) as a guarantee or leverage to obtain personal loans had been expended to purchase real estate in the private names of the first plaintiff's family members,” he said.
“Based on the evidence received at trial, there is no evidence that public funds were somehow used as collateral or security or otherwise put at risk, even if the contention of Rafizi is accepted that he only meant that the funds disbursed to the second plaintiff has been used as leverage.”
Rafizi's defence rejected
Azizul said Rafizi's statement cannot be considered fair comment as the basic facts available to the latter do not support the inferences drawn.
He said at the time of the publication or press conference in question, the offer for the loan from Public Bank to Salleh and his son had already been withdrawn.
“The basic facts then made availablle to Rafizi do not, in my view, support the inference that he had drawn from those facts (that it is used as a leverage).
“The comment made by Rafizi is not one that a fair minded person could have honestly made based on that facts that were available to him at the time,” he said.
On Rafizi's defence of qualified privilege, Azizul said he observed the MP is a man of uncommon intelligence who studied engineering and subsequently qualified as a chartered accountant.
“I find that Rafizi would have known that documents had been passed to him in breach of banking secrecy obligations. It would therefore have been apparent to him that the information contained in the documents could not have been verified by the bank in question.
“No attempt was made (by Rafizi) to contact NFC to verify the inferences that he had drawn from the contents of the documents. Even though the subject matter of the publication could be said to be of public concern due to the fact that Salleh was a recipient of a loan from the government, the matter was not one that was so urgent that the need for verification could be dispensed with,” he said.
Rafizi had time for verifications
Rafizi, the judicial commissioner said, had time to analyse the documents contents and prepare a three page press statement.
“If there was sufficient time for Rafizi to have prepared a press statement, then there would have been time to contact the plaintiffs for verfication of the allegations or the plaintiffs side of the story,” he said.
Following this, he ordered that a global sum of RM150,000 to be awarded to Salleh and RM50,000 to NFC, but dismissed the claim for exemplary damages.
He also dismissed the claim that Rafizi's statement was malicious and hence the claim of aggravated damages was dismissed.
On dismissing the claim against Malaysiakini and Kinitv which uploaded a video of the press conference, Azizul said although the court was not satisfied that the newsportal had attempted verify the accuracy of the statements contained in Rafizi's press release, the failure to undertake such verification is not fatal to a defence of reportage.
The reporting done by Malaysiakini had been done in fair, disinterested and neutral way.
“I conclude that the journalist in question did not adopt the statements as her own. In addition, the updating of the article at approximately 11pm on the same day to include the response from NFC supports the finding that the reporting was done in a fair and neutral manner,” he said,

In an immediate reaction, Salleh thank god for today's judgment.
Alhamdulillah. We are thankful to Allah for his gracious blessings and strength in this matter. We are also thankful to Azizul for his learned wisdom, patience and understanding, having arrived at this decision. Finally, the truth prevails.
“Since late 2011, the Malaysian Government, National Feedlot Corporation Sdn Bhd, its directors and my wife have had to endure a spate of unwarranted vicious attacks by the opposition and those out to take advantage against us. Today, the air is cleared,” he said adding he thanked his legal team.
Rafizi is represented by lawyer Razlan Hadri Zulkifli while lawyer K Shanmuga appeared for Malaysiakini.-Mkini

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