Thomas’ lawsuit to be heard as defamation action

The Kuala Lumpur High Court has directed former attorney-general Tommy Thomas’ lawsuit to be heard as a defamation action.

Judge Wan Ahmad Farid Wan Salleh made the ruling this afternoon in relation to the striking out application by the government and a special task force against Thomas’ originating summons over the special task force report into his memoir ‘My Story: Justice in the Wilderness’.

The special task force report was made available to the public through the Prime Minister’s Department Legal Affairs Division on Oct 21 last year, following then-caretaker prime minister Ismail Sabri Yaakob's announcing its declassification after a decision made by the cabinet earlier on Sept 30 last year.

Among the report’s key recommendations was for the separation of the office of attorney-general and public prosecutor over “selective prosecution”.

However, the report gave no example of “selective prosecution” on Thomas’ part, who held office from June 4, 2018, to Feb 28, 2020.

During online proceedings today, Wan Ahmad Farid said that he would not order for the originating summons to be struck out, but instead that the action be converted into a writ of summons suitable for full trial of a defamation suit.

Wan Ahmad Farid, who presides over the appellate and special powers court division, ruled that Thomas' legal action should have been filed from the onset as a writ of summons rather than originating summons.

In ordering the matter be transferred to the civil court division that handles defamation matters, Wan Ahmad Farid said an originating summons is not a suitable mode for defamation matters as it only involves an exchange of affidavits rather than an actual full trial involving witness testimonies.

Alleged tarnishing of reputation

The judge noted that the crux of Thomas' grievance was over alleged tarnishing of his reputation from the special task force report, which involved significant disputes of fact that can only be resolved via full trial involving witnesses and documentation.

(Unlike an originating summons, a civil court presiding over a full trial of a writ of summons for defamation would see both plaintiff and defendant call their respective witnesses to the witness stand, and where the opposing side can cross-examine the witnesses to attack their credibility, with the court deciding after all witnesses have testified).

"The long and short of it is that this is a claim for loss of reputation, which is a claim for defamation.

"A claim of this nature cannot be resolved via mere exchange of affidavit evidence (in matters involving originating summons) as there is substantial dispute of facts.

"I direct this OS (originating summons) to be heard via civil determination, and I will not determine the legality of the special task force," the judge said, adding that he made no order as to costs.

With today's ruling, a civil division of the courts (that presides over the writ of summons) would be set to preside over the full trial of Thomas' legal action.

[More to follow] - Mkini