A test case has been filed at the Federal Court today by veteran journalist MGG Pillai, seeking for the review of an earlier decision of the highest court in the country.

Pillai is asking the court to set aside its earlier decision in upholding the award of RM2 million in damages which he was ordered to pay business tycoon Vincent Tan in a defamation suit. Pillai, who has yet to pay the amount, wants the court to re-hear the matter.

Pillai, who filed the motion this morning at the Federal Court registry, said the review was necessary on the grounds that the Federal Court which heard his appeal could have acted in bias as there was a known friendship between the then Chief Justice Eusoff Chin and counsel VK Lingam, who acted for Tan.

Guilty of defamation

The Federal Court, with Eusoff presiding, delivered a written judgment in July last year upholding the decision of the High Court which ordered Pillai to pay the amount to Tan.

The High Court in 1994 found Pillai guilty of defaming Tan in an article which he wrote in the Malaysian Industry magazine. Pillai and several other defendants were ordered to pay Tan damages amounting to RM10 million. Pillai's share amounted to a total of RM2 million.

Pillai and two others then appealed to the Court of Appeal which dismissed their appeal in 1995. The Federal Court, which also had Chief Judge of Malaya Wan Adnan Ismail and Chief Judge of Sabah and Sarawak Chong Siew Fai on the panel, then heard Pillai's appeal in January 1998.

The Federal Court dismissed Pillai's appeal on the grounds that the award made by the High Court was reasonable and based on established principles of law.

Friendship disclosed

"The chief justice (Eusoff) had a personal relationship with Lingam which was not disclosed to the parties," said Pillai in his affidavit filed in support of the motion.

"This (the relationship) has caused severe concern to me, and further resulted in a situation where a reasonable member of the public could form a reasonable apprehension that Eusoff would have been favourably disposed to Lingam or his client."

Pillai also said that the element of being biased was compounded by the appearance of photographs of both Eusoff (second from left) and Lingam (second from right) with their families on holiday together in New Zealand. The [#1] photographs[/#] were also posted on the Internet.

He said that some unknown persons had delivered the photographs to his house in January 1998.

Eusoff faced investigations over the holiday, which took place in 1994, but no action was taken against him as the Attorney-General's Chambers said last November that it found no evidence of misconduct.

Eusoff also denied any wrongdoing over the incident, claiming that he met Lingam in New Zealand by chance and that he had paid for his own holiday.

Retired justice

Pillai also said that the judgment handed down by the Federal Court was unlawful and unconstitutional as it was delivered after the retirement of justice Chong.

"The judgment was delivered on July 12, 2000, some 30 months after the court heard the appeal, and justice Chong had retired on or about July 3... this absence renders the judgment unlawful and invalid," said Pillai.

Pillai also added that the long delay in the judgment, despite assurances by the court that the judgement would be delivered in two months from the date of the hearing, also contravened the 1994 Judges' Code of Ethics.

The code states that judgments must be delivered within six weeks of the final hearing of a case.

"At the hearing, I was also told that all three judges would write separate judgments but when the judgment was delivered, it was done by an assistant registrar who read a judgment written by Eusoff and in the absence of all three judges who heard my appeal."

Yesterday Pillai told malaysiakini that his application was strengthened by the Pinochet principle set by the British House of Lords, which quashed an earlier decision to extradite General Augusto Pinochet to Spain and ordered a retrial because it was learnt later one Law Lord and his wife were active in Amnesty International.

Amnesty had actively campaigned for the former Chilean president's extradition to Spain.