No exemption, Sultanah has to give evidence, says Appellate Court

 

Sultanah Nur Zahirah had sued Sarawak Report editor Clare Rewcastle Brown and two others over what she claims are “defamatory statements” in a book.

PUTRAJAYA: The Court of Appeal today set aside a High Court ruling that exempted Terengganu’s Sultanah Nur Zahirah from giving evidence to prove her defamation suit against Sarawak Report editor Clare Rewcastle Brown and two others.

A three-member bench chaired by Mohamad Zabidin Mohd Diah said the plaintiff ought not have pursued the application via Order 14A of the High Court Rule.

“The matter is to be determined at trial. The application should have been dismissed,” he said, in allowing an appeal by Rewcastle Brown, publishers Gerakbudaya Enterprise, Chong Ton Sin and printer Vinlin Press Sdn Bhd.

Zabidin, who sat with M Nantha Balan and Lee Heng Cheong, said the bench agreed that the bane and antidote (sting and cure) is an ingredient defence.

“The publication must be read as a whole and the bane and antidote must be taken together. It cannot be truncated in the way the judge has done under Order 14A,” he said.

Zabidin said in this case, the defamatory statement was found on page three of the book while the defendants took the position that the antidote was at page 438 and must be determined after a trial.

Lawyer Gopal Sri Ram, who appeared for the defendants , today submitted that those who have gumption to invoke the court process must come to court to give evidence.

The suit should go for full trial as there are triable issues,” he added.

Lawyer Vishnu Kumar, representing the Sultanah, submitted that the High Court had found that the defendants had defamed the plaintiff and the burden therefore shifted to proving their defence.

On Dec 13, 2019, trial judge Ahmad Zaidi Ibrahim ruled that in the face of the suit, the defendants had defamed the Sultanah.

The judge said that in the minds of any reasonable person, an impugned passage in the book “The Sarawak Report – The Inside Story of the 1MDB Expose” had cast aspersions on the plaintiff.

He said he concurred with the Sultanah’s lawyers that the defendants need not bring a language expert to prove the passage in the book was not defamatory.

The judge said the “ball has now been shifted to the defendants” and they could take the stand to rely on the defence available in defamation cases or take a position of no case to answer.

The defendants had cited the defence of justification, fair comment and qualified privilege.

Sultanah Nur Zahirah filed the application for her suit to be decided by summary judgment under Order 14A.

She alleged that Rewcastle Brown had made a disparaging statement about her in the book, and claimed that it could be taken to mean she was involved in corrupt practices.

She said the defamatory statement could also infer that she had interfered in Terengganu’s administration and had used her status to influence the establishment of the Terengganu Investment Authority (TIA), which later became 1MDB.

She alleged the statement also construed her as having helped Low Taek Jho, also known as Jho Low, to become the adviser of TIA.

She is claiming general damages of RM100 million from each defendant. - FMT