Lalitha Kunaratnam is prepared to prove in court the contents of her online articles regarding the issue of MACC chief commissioner Azam Baki’s share ownership in public-listed companies.
According to the whistleblower’s statement of defence against the antigraft agency head’s defamation suit, she contended her write-ups about the issue were based on documents made available by websites such as Edisi Siasat.
Azam is suing over the activist’s two articles, “Business Ties Among MACC Leadership: How Deep Does It Go? (Part 1)” and “Business Ties Among MACC Leadership: How Deep Does It Go? (Part Two)”, which were carried by the Asia-based Independent News Service (INS) late last year.
According to the statement of defence filed yesterday and sighted by Malaysiakini, Lalitha contended that her articles touched on the critical public interest matter initially raised by Edisi Siasat and other websites in September last year.
She pointed out that these websites’ online reports – on the allegations of conflict of interests and business links involving MACC and corporate entities, shareholdings and directorships – went viral.
She claimed that the contents of her articles and consequent postings on Twitter were “based on responsible investigative journalism and on a neutral unbiased analysis of facts and information obtained and available in the public domain”.
She contended that the articles “were not concerned exclusively with the plaintiff (Azam) but dealt with wider national and political issues of possible corruption and business entities links which were being highlighted in the Malaysian media”.
Lalitha claimed that from before she even began writing her articles and to the time she completed her write-up in October last year, she had tried several times to get Azam’s response over the issue, but he allegedly did not give any.
She contended that the MACC chief finally responded via a press conference on Jan 5 after a silence of three months following numerous media-reported developments on the issue.
Among these cited developments are the Dewan Rakyat speaker’s rejection of an urgent motion to discuss the issue in Parliament.
She also cited economist Edmund Terence Gomez’s resignation from the MACC Consultation and Corruption Prevention Panel on Dec 27 last year, over alleged inaction regarding the issue.
Justification, reportage defence
“In the alternative, the defendant (Lalitha) will seek to justify the said publication and the meaning attributed to it.
“The defendant at the trial of this action will refer in detail to the publicly available facts and data in this regard to an exercise in investigative journalism,” she further contended.
In a civil suit for defamation, justification is a defence that the statements or allegations are true, and if proven successful in court, would act as an absolute defence against the legal action.
Lalitha cited the defence of reportage in relation to her articles regarding the issue of Azam’s shareholdings.
Reportage as a defence against defamation suit is when it involves neutral reporting without adopting or endorsing the report, as long as both sides of the dispute have been fairly reported in a disinterested manner.
“If (which is denied), the words were defamatory of the plaintiff (Azam), the defendant (Lalitha) pleads the defence of reportage and states that the impugned articles were published as a result of fair and neutral reportage of the defendant’s research and it is applicable to her defence as primarily, the essence of neutral reportage is the publication of the information in the public interest.
“The defendant states that judging from the thrust of the alleged impugned articles as a whole, the effect of the articles as a whole is not to adopt the truth of what is being said but to record the fact that the alleged defamatory events took place.
“From the thrust of the articles, the defendant has reported the articles based on what she had extracted from confirmed sources and summed the information accurately, fairly and in a neutral way,” she contended.
Qualified privilege, fair comment defence
Lalitha also cited several other defences such as qualified privilege and fair comment against the civil defamation action.
Under the law for a defamation suit, qualified privilege is a defence that applies in a situation where the words were issued by a person who has an interest or a legal, social or moral duty to do so.
The defence of fair comment is one where the impugned statement was made as a fair comment (rather than as a statement of fact) over an issue of public interest.
In her statement of defence, Lalitha also claimed that her investigative journalistic work required her to work with MACC and that she actually allegedly had her first official meeting with Azam on July 17, 2020.
“Thereafter, the defendant had a good working relationship with the plaintiff and his staff. The defendant has communicated several times in the past with the defendant and his staff,” she claimed.
Lalitha contended that in her dealings with the MACC she had previously requested protection under the Whistleblower Protection Act 2010 on Nov 12, 2020, in relation to a high-profile case being investigated by the graft buster agency. She claimed that an MACC staff officer at the MACC headquarters in Putrajaya attended to her.
The lawsuit is fixed for case management before the Kuala Lumpur High Court on Feb 15. Lalitha is represented by lawyers from the law firm Ibrahim & Fuaadah.
Azam’s personal defamation suit
On Jan 12 via a press release, Azam’s lawyer Megat Abdul Munir, who is from law firm Zain Megat & Murad, announced the filing of the defamation action. The MACC chief is suing Lalitha in his personal capacity.
Azam previously issued a letter of demand to Lalitha via his lawyers, demanding an apology and RM10 million in damages.
Lalitha has since said she stands by her reports and criticised the MACC’s attempt to rope in the police to investigate her.
Azam came under the spotlight over his ownership of 1,930,000 shares in Gets Global Berhad (previously KBES Berhad) on April 30, 2015 worth around RM772,000 at the time.
He also held 2,156,000 warrants in Excel Force MSC Berhad in March 2016.
The share ownership in 2015 and 2016 raised questions on whether it was commensurate with his income as a public servant.
In a special press conference on Jan 5, Azam did not dispute the ownership of the shares but claimed they were bought in his name by his younger brother. They have since been transferred to his brother.
Nearly a week later on Jan 18, the Securities Commission (SC) announced that it had concluded its enquiry into the case and that it is unable to conclusively establish that a breach under Section 25(4) of the Securities Industry (Central Depositories) Act 1991 (SICDA) had occurred.
However, following criticism, the SC clarified that it found that Azam had “control” over his own trading account and that it found no evidence of proxy trading. – Malaysiakini