Two years after the International Court of Justice (ICJ) ruled that United Nations (UN) Special Rapporteur Param Cumaraswamy enjoyed immunity from defamation suits, an application to withdraw the last of the four such suits filed against him in Malaysia was made yesterday.

With this application, all four suits totalling RM280 million filed against Param in 1996, have been either been applied to be discontinued or struck out.

The last of the suits involved local companies MBf Capital and MBf Northern Securities who filed their notice to withdraw their RM60 million suit against Param at the Kuala Lumpur High Court yesterday.

This followed a similar application made by prominent businessman Vincent Tan and his two companies to discontinue their RM100 million suit on May 23 and a notice by lawyer VK Lingam to discontinue his RM60 million suit a day earlier.

On July 7 last year, Param's application to strike out another defamation suit against him, a RM60 million suit by Insas Bhd and Megapolitan Nominees, was allowed by High Court judge RK Nathan who ruled that the ICJ advisory opinion was binding on Malaysian courts.

The suits arose from an article published in a London-based trade magazine, International Commercial Litigation , in November 1995.

The plaintiffs claimed that Param was quoted in the article as saying that certain plaintiffs and their lawyers enjoyed improper preferential treatment in Malaysian courts. The article also questioned the independence of the Malaysian judiciary, particularly in cases involving influential businesses.

The plaintiffs also sued several others, including lawyer Tommy Thomas and legal firm Skrine & Co as well as Asian Wall Street Journal correspondent Raphael Pura, for a total of RM300 million over the same article.

Suits against Thomas and Skrine have been settled out of court while Pura's matter is still pending.

Advisory opinion

Param had questioned the legality of the suit on the grounds that he enjoyed immunity as the UN special rapporteur on the independence of judges and lawyers.

Both Param and the UN maintained that he was entitled to immunity from the legal process pursuant to the Convention on the Privileges and Immunities of the UN.

On April 29, 1999, the Netherlands-based ICJ delivered its advisory opinion that Param enjoyed such immunities.

Param told malaysiakini today that the case by the two MBf companies was nearing their hearing stage and had undergone case management process before justice Hamid Said on May 4.

He said that it has taken almost five years for the plaintiffs to realise that he enjoyed immunity from the suits and to decide that they should discontinue their actions.

Sharp rebuke

The ICJ's opinion was not well received by the Malaysian courts. Param's solicitors said that even Justice Hamid had intimated on March 1, when the case was mentioned before him, that he did not think the ICJ opinion was binding on him.

In the Insas suit before a High Court registrar, the registrar had ruled that the ICJ's opinion was not binding on the court and dismissed Param's application to strike out the suit.

Only when the matter went on appeal before Justice Nathan did the court rule that it was bound by the ICJ opinion. However, Nathan had ordered both parties to pay their own costs of litigation.

This was against the ICJ's opinion which held that Param must be held 'financially harmless' from any costs imposed by the Malaysian courts.

Nathan's ruling on the costs as well as his comments on the merits of the case and Param's role as a special rapporteur drew a sharp rebuke from the UN secretary-general Kofi Annan.

In a letter to the Prime Minister Dr Mahathir Mohamad, Annan said that he strongly objected to Nathan's comments.

Universal mandate

"The judge questions the propriety of the (UN) Human Rights Commission entrusting the task of investigating complaints about the independence of Malaysia's judiciary to a Malaysian national.

"Param had received a universal mandate from the commission to investigate such complaints wherever they arise," said Annan.

He added that Param had a right and a duty to investigate Malaysia's judiciary in the course of the performance of his mission.

Following the plaintiff's notice to discontinue their suit, Param today withdrew his application before the Federal Court which challenged an earlier decision made by the Federal Court in matters arising from the four defamation suits.

In his application, Param had wanted the court to declare the constitutionality of a Federal Court ruling which had denied him a leave to appeal against a decision which was not in his favour.