There was "no real danger of bias" in a defamation suit appeal involving journalist MGG Pillai although there was a known friendship between former Chief Justice Mohamad Eusoff Chin and lawyer VK Lingam, the Federal Court heard today.

Lingam told the court that allegations of bias because of his friendship with Eusoff cannot stand as he "was not a party to the litigation before Eusoff".

The lawyer was submitting at an application by Pillai to the Federal Court to review its previous decision in allowing a High Court ruling ordering Pillai to pay prominent businessman Vincent Tan RM2 million in defamation damages.

Lingam was Tan's lawyer for the defamation suit and is also his counsel for the current hearing.

Pillai's grounds for the review was based on his claim that Federal Court which heard his appeal could have acted in bias following a known friendship between Eusoff and Lingam. Eusoff was on the Federal Court panel which heard the appeal.

Yesterday, Pillai's lawyers submitted that there was a "clear case of judicial bias" in the dismissal of Pillai's appeal and this was "evident from the photographs of Eusoff and Lingam, in relaxed poses of friendship, apparently taken on holiday".

Eusoff was alleged to have spent a controversial Christmas holiday with Lingam in New Zealand seven years ago. Eusoff said that the encounter was not planned and that he had bumped into Lingam there.

"That Eusoff's explanation of how these photographs came to be taken is not the whole story 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 chance meeting," said Pillai's lawyer yesterday.

Motion invalid

Lingam today countered this by stating that Pillai could not use the photographs now as a basis for a review adding he should have done so when the matter was first brought before the Federal Court.

He said that Pillai had admitted having the photographs in January 1998 and should have used them to apply to disqualify Eusoff from hearing the matter then.

Lingam also said that Pillai's motion for the review was invalid as it did not state the provision of the law under which the application was made.

Citing case laws and legal authorities, Lingam argued that there was no provision in the law for Pillai to set aside the unanimous judgment of the Federal Court.

"Therefore, it is clear that this court has no jurisdiction of any sort to re-open and review its judgment dated July 12, 2000," added Lingam.

The Federal Court had delivered a written judgment in July last year - 30 months after having reserved its judgment - unanimously upholding a decision of the High Court which ordered Pillai to pay the amount to Tan.

Lingam also refuted Pillai's argument that the Federal Court judgment was "irregular and unconstitutional" as it was delivered eight days after the retirement of the Chief Judge of Sabah and Sarawak Chong Siew Fai.

Chong and the then Chief Judge of Malaya, Wan Adnan Ismail, together with Eusoff, made up the three-member Federal Court panel which heard Pillai's appeal three years ago.

Before retirement

Lingam said that his co-counsel had written a letter to Eusoff's former secretary in March this year to know if Eusoff had been in touch with the other two judges to decide the matter.

He added that a reply by the secretary indicated that the three judges had arrived at a decision "at the latest by June 2000".

He said from this, it was evident that Chong had decided on the matter before his retirement.

Hearing of the review will continue at a date to be fixed later. The bench comprises Chief Judge of Sabah and Sarawak Steve Shim Lip Kiong and Federal Court judges Siti Norma Yaakob and Haidar Mohd Noor.

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

Pillai and two others then appealed to the Court of Appeal which dismissed the appeal in 1995. The Federal Court then heard Pillai's appeal in January 1998.