The ghosts of the Australian-built Nomad aircraft crash which took the lives of Sabah chief minister Donald Aloysius Marmaduke Stephens @ Mohd Fuad Stephens and 10 others on Jun 6, 1976, dubbed the "Double Six" tragedy, are restless again.
This time his successor, Harris Mohd Salleh, is seeking contempt proceedings against former Sabah chief minister Yong Teck Lee for alleged utterances against a Feb 29 High Court decision involving the 36-year-old tragedy. In announcing his decision, Harris also took the opportunity to conduct a spirited defence of the judiciary in the court of public opinion.
High Court Judge Abdul Rahman Sebli held that Yong had insinuated in a public statement on April 9, 2010, that Harris had "blood on his hands" in touching on the Double Six tragedy and thereby crossed the line between defamation and fair comment. He awarded Harris RM1 million in damages against Yong and his party, Sabah Progressive Party (SAPP). Harris probably never thought that he would win and was not present in court.
Rahman hastened to include, in a seeming contradiction, that there was nothing wrong in Yong calling for a re-opening of the investigation into the Double Six. However, he was strangely silent on exactly how Yong was expected to do this without citing the grounds in support of such a plea.
Short of new evidence emerging on the air-worthiness of the ill-fated aircraft, Yong could only rely on the personal testimonies of those characters who escaped the Double Six tragedy. The real reason for the crash remains a mystery and the original report on the tragedy remains classified.
Petronas founder-chairman and former finance minister Tengku Razaleigh Hamzah, during an oil talk in Kota Kinabalu in early April 2010, provided a gripping personal recollection of the Double Six tragedy. He confessed being haunted by the tragedy to this day not only because he escaped being a victim, a point which was driven home rather dramatically each time he was in Kota Kinabalu, but also because his private secretary Isak Atan was among those who perished in the air crash.
Razaleigh, without apportioning any blame or seeming to give credit, mentioned that Harris pulled him out of the ill-fated aircraft minutes before take-off from Labuan. Razaleigh, in turn, invited Sarawak chief minister Abdul Rahman Ya'kub to alight as well from Stephens' aircraft. All three subsequently boarded another Nomad aircraft to view a cattle farm in Kudat.
In the evening, the signing ceremony for the oil agreement was to be held in Kota Kinabalu. The ceremony, earlier scheduled to be held in Labuan for some strange reason, never took place and/or was aborted.
Stephens, needless to say, never made it to the signing ceremony in Kota Kinabalu. The rest is history.
Flogged to death
Razaleigh's talk was enough material for Yong to publicly urge a re-opening of the investigation into the Double Six. He cited Razaleigh's talk as being good enough to warrant a new probe and mentioned various other tragedies around the globe which were probed anew.
Yong, bent on re-inventing his party which left the ruling Barisan Nasional (BN) in a huff on Sept 17, 2008, has not taken too kindly to Rahman's judgment. This should come as no surprise.
For starters, Yong claims that he never implied either directly or indirectly that Harris has blood on his hands. Hence, he can go on to claim that the judge had been reading far too much against him from his April 9 statement. Yong, in that case, should naturally have been given the benefit of the doubt on the matter.
Yong allegedly further opined, in the wake of Feb 29, that the RM1 million award was actually meant as a warning to others who may wish to wax lyrical on the Double Six tragedy. He is said to have surmised that Sabahans will not stop talking about Double Six.
Yong or no Yong, there's probably not a day which goes by when Sabahans don't talk about Double Six. The issue is being flogged to death. It's the favourite topic with them in encounters with visitors from Peninsular Malaysia. They seem convinced that Stephens was murdered, to put it bluntly, by federal government operatives after he apparently either refused to sign away the state's considerable oil and gas resources or for a pittance. The popular public perception is that the timing of the tragedy was all too convenient.
The judge, it appears, failed to take into account the political temperature and the people's sentiments on Double Six before he threw the book at Yong. There's the law and the politics of the people.
In matters which involve the people as a whole, the court usually walks the tightrope gingerly as it would not want to run the gauntlet later on the same issue and/or found wanting in any manner on appeal.
Dubious distinction
There's a world of difference between a token RM1 and RM1 million with the claimant having failed to justify a RM50 million claim.
The court had previously held – Harcharan Singh in the case of Claimants vs New Straits Times in a defamation case – that it would not be a party to anyone seeking to enrich themselves, justly or otherwise, through the judicial process. The public interest would not be served by fostering a litigatious society which sues all and sundry at the drop of a hat.
At worst, Yong was playing politics with Double Six and that would not be surprising at all; at best, he was echoing public sentiments on the tragedy. There are no secrets in Sabah as the locals will proudly tell you. One dubious distinction is the observation that "these things – whatever – can only happen in Sabah".
Yong may have a point or two in his favour based solely on Rahman's judgment. He will have his day in court again on the case since he intends to appeal. He was denied a stay of execution on the judgment by Rahman on the grounds that no special circumstances were proven to warrant it.
Special circumstances are by their very nature difficult to prove. Those not granted special circumstances – the court will accept in a test – will be grievously injured or suffer irreparable harm if a higher court subsequently ruled in their favour.
By that time, it could be a case of too little, too late if special circumstances had not been granted in time.
There are no guarantees that Yong would come out a winner financially if he succeeds on appeal. Harris would not give in that easily and is likely to take the matter further to the Federal Court if leave is obtained.
In the end, Yong would most probably console himself with a Pyrrhic victory as much time, effort and other resources would have been tied up in the case, the appeal, the cross-appeal if any, and further appeals. Already, to reiterate, there's the contempt motion that Harris contemplates in court. Alternatively, he wants to prevail on the Attorney-General to initiate contempt proceedings against Yong.
The contempt motion, if push comes to shove, might yet fizzle out as such applications usually do in the end.
Newspapers routinely commit contempt of court and/or otherwise comment on matters which are still in court and therefore sub judice. Nothing happens to them anyway as the court prefers to allow a little licence and look the other way.
In Yong's case, he could always explain to the court on the alleged contempt and, if that fails or is not accepted, apologise to the court and purge the contempt. He has to do that in order to ensure that his appeal is not compromised and/or jeopardised.
The contempt proceedings, if it comes to pass, would be a golden opportunity for Yong to seek clarification on Rahman's judgment and some of the judge's more controversial remarks.
The judiciary must take cognizance of the fact that the public have been watching it like hawks ever since former prime minister Dr Mahathir Mohamad moved to muzzle it during his long innings in power.
The bottomline is that most defamation cases, especially those political in nature, do not even make it to the hearing. They end with an apology and handshake in court, with both sides picking up their own costs after the suit is struck out.
If Harris felt offended somehow by the April 9 statement, it's a bit of a mystery why there were no apologies and handshakes in court to end the matter then and there. Yong's stand could be that he did not defame Harris. Be that as it may, one could still apologise if another somehow felt offended even if the former acted in good faith.
The Harris-Yong spat, if for nothing else, distracts all from the main objective of having another look at the Double Six tragedy.
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