Counsel for journalist MGG Pillai told the Federal Court today that there had been a clear case of judicial bias in the dismissal of an appeal against a RM2 million defamation award Pillai was ordered by the High Court to pay prominent businessman Vincent Tan.

"This is evident from the photographs of Eusoff Chin and VK Lingam, in relaxed poses of friendship, apparently taken on holiday," counsel Vinayak Pradhan told the court in a review hearing of the appeal which began today.

Pillai 's request for review on Feb 22 this year is based on his claim that Federal Court which heard his appeal could have acted in bias following a known friendship between then Chief Justice Eusoff Chin and Lingam, who acted for Tan. Lingam remains as Tan's counsel in this review.

Eusoff together with the Chief Judge of the High Court of Malaya Wan Adnan Wan Ismail and the then Chief Judge of the High Court of Sabah and Sarawak Chong Siew Fai were on the Federal Court panel which heard the appeal in 1998. Eusoff was alleged to have spent a controversial Christmas holiday with Lingam in New Zealand seven years ago.

"Eusoff Chin's reaction are evasive and inconsistent with the photographs. He says that he "bumped into" Lingam and that Eusoff had put his hands around his shoulders.

"That Eusoff's explanation of how these photographs came to be taken is not the whole story that can be seen from the itinerary and flight tickets which show Lingam and Eusoff traveling together to New Zealand. This contradicts his suggestion that the photographs arose out of a chance meeting," said Pradhan.

Pradhan added that as the Chief Justice at that time of the appeal, he had failed to disqualify himself from the case in view of the situation.

"In such cases, the guiding principle is that justice must not only be done but must be seen to be done," Pradhan said.

'Rushed justice'

Lead defence counsel for Pillai, N Sivalingam told the court that the period taken for the judgement to be delivered was in itself a denial of justice.

"A breach of the Judges' Code of Ethics constitutes a removal of any judge and it is expressly stated that a judge shall not inordinately and without reason delay judgements and pronouncements," Sivalingam said.

Pillai applied for his appeal to be heard on July 24, 1995. It was heard on Dec 1, 1998 and its judgement was only read out on July 12 last year, the entire process taking five years.

Sivalingam also said former Chief Judge Chong rushed through the judgement, as he had retired just nine days before the judgement was announced.

"Having waited for so long, this is a case of rushed justice, not in the cause of justice but to meet the judge's retirement age," he said.

Earlier, defence co-counsel Bastian Pius Vendargon argued that the Federal Court had the jurisdiction to review the appeal judgement .

"It is wrong to say that the Federal Court has no jurisdiction to set aside its decision even if the previous decision was illegal and unconstitutional.

"This court has the power to set aside its judgements in special and exceptional cases but only under limited circumstances. The court should put things right and allow the legal system its inherent jurisdiction to prevent abuse," he said.

'A finality'

Lead counsel Lingam for Tan, however, argued that should the court be convinced by Sivalingam's arguments, the legal precedent set would open up the "floodgates".

"There is no guarantee when you open the floodgates, that you can stop the flood thereafter. If people are not happy with Federal Court pronouncements, they will reopen and change the law.

"In public interest, there should be a finality to judgements and individuals should not use the excuse of bias. There would be no end to litigation," he argued.

He also said that by questioning the judgements made by the Chief Justice and the Chief Judges of the High Courts, there would be "chaos".

The three-member Federal Court panel hearing the review application comprise Chief Judge of Sabah and Sarawak Steve Shim Lip Kiong and Federal Court judges Siti Norma Yaakob and Haidar Mohd Noor.

The hearing continues tomorrow at 9am.