A case of Justice tempered by Compassion.

Former Chief Justice Tun Ahmad Fairuz said he concurred with former Bar Council President & Yeo Yang Poh that there could be a prima facie cause for contempt of court on Lingam as he had put the judiciary's reputation in very bad light.

But he did not summon V.K.Lingam to show cause on why he should not be cited for contempt for allegedly making untrue remarks and scandalising the judiciary.

Why? Why wouldn't he do it?

He said it was difficult for him to summon Lingam since the subject matter was under investigations by the Anti-Corruption Agency (ACA).

"At that time, I didn't know the outcome of the investigations and the contents of the video clip was not proven whether it was authentic or fabricated. Also, I could not confirm positively who was the speaker in the video clip," Fairuz said.

"I did not take steps to reply to the allegations in public as the matter was already a subject of investigation," he said.

All those parties implicated in the video could, if they wanted to, could institute legal action against Lingham, either for contempt of court or defamation.

A finding of contempt of court may result from a failure to obey a lawful order of a court, or showing disrespect for the judge, or disruption of court proceedings through poor behavior, or publication of material deemed likely to jeopardize a fair trial, or putting the judiciary's reputation in very bad light.

In law, a person is defamed if statements in a publication expose him to hatred or ridicule, cause him to be shunned, lower him in the estimation in the minds of "right-thinking" members of society or disparage him in his work.

Defamation occurs when a statement or publication injures the reputation of another. Defamation is established once it is shown that the words either spoken or intended to be read or by signs, or by visible representations, make or publish any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person.

The Tort of Defamation includes Libel or Slander. Libel applies to statements conveyed in a permanent form; slander applies to statements conveyed in a transient form. Spoken words are slander and printed words are libel.

The key difference between actions for libel and slander is that in an action for slander the claimant must prove 'special' or 'actual' damage.

If the claimant is able to show that the defendant was motivated by malice there is no defence.

Firstly, the claimant may seek to show that the defendant used the privilege which the law grants for purposes other than those for which it was granted; in such circumstances there is deemed to be malice on the part of the defendant and the defence of qualified privilege is lost. (see: Horrocks v Lowe [1975] Lord Diplock)

Secondly, the rule laid down in Clark v Molyneux (1877) by the Court of Appeal that the claimant can prove malice by showing that the defendant did not believe in the truth of what was said or was reckless as to the truth of statements, this was outlined by Brett LJ.

Lack of honest belief is not of itself malice, rather it is evidence of malice (Horrocks v Lowe [1975])

In Thomas v Bradbury, Agnew and Co Ltd and another [1906] the court held that evidence that the defendant was actuated by malice would defeat the defence of fair comment, notwithstanding that in all other aspects the comment may be considered fair.

The claimant must show that the defendant exceeded his privilege, for example by producing a defamatory statement which include a statement not referable to the duty or interests protected by the defence or by publication to persons that are entitled to receive the statement under the defence.

Malice would be inferred if it was proved that the words were calculated to produce damage and that the defendant knew them to be false.

However, it is observed that none of those cited in the video is taking any legal action. probably, as Vincent Tan relates his story: "My experience in defamation, forget it, don’t sue for defamation. What for? Can never get the money. Or you could have appeal, appeal, appeal and it could be slashed down to RM10,000. Don’t sue, unless can be sure the party can pay. Get RM10 million, Legal Fees RM1.5 million, but not one sen recovered. Terrible business deal!!”

This is Vincent Tan's statement to the Commission of Inquiry:

“Yes, he (Lingham) is a good lawyer. But after viewing the tape, I was disappointed. He was talking rubbish and bragging so much and throwing my name around ….. I don’t understand why he wants to impress that person so much …Obviously we have to reevaluate the relationship. Definitely. Making a fool of himself in this. But we do not want to abandon him in this difficult time. We must be objective but compassionate also”.

Probably, Vincent is also speaking for the rest of the actors and supporting cast. They were compassionate of a friend in his difficult time. As altruist says, "A friend in need, is a friend indeed."

My saying, "A friend misdeed, is a friend you never need."

Mischievous friends can't be friends; you don't need enemies anymore!