KUALA LUMPUR, Dec 13 — Terengganu Sultanah Nur Zahirah has proven on first impression or prima facie that she was defamed by Sarawak Report editor Clare Rewcastle-Brown and two others in the latter’s book over the 1Malaysia Development Berhad (1MDB) scandal, the High Court ruled today.
The High Court said that this meant that the Terengganu Sultanah will not have to physically come to court to prove that she was defamed by Rewcastle-Brown and the two others.
High Court judge Datuk Ahmad Zaidi Ibrahim said that Terengganu Sultanah as the plaintiff had been defamed on the face of the case or prima facie, and that the three defendants who were sued including Rewcastle-Brown will now have to present their defence in the defamation lawsuit.
“But without the court hearing the explanation or defence of the defendants, prima facie it is defamatory. Hence the ball is shifted to the defendants to rebut, to raise their relevant defence — justification, fair comment or qualified privilege.
“But as far as the plaintiff is concerned, since all four questions have been answered, therefore the court agrees with the plaintiff that in such a situation, there’s no need for the plaintiff to come and testify,” he said, adding that the Terengganu Sultanah’s presence would also not be required when Rewcastle-Brown and the two others present their defence.
The Terengganu Sultanah had applied for the court to summarily dispose of the case using points of law without having to go through a full trial that would have required her to testify in court, by posing four questions for the court to determine.
What were the four questions?
The four questions included whether a paragraph on the third page of Rewcastle-Brown’s book The Sarawak Report — The Inside Story of 1MDB Exposé referred to the Terengganu Sultanah, and whether this paragraph had been published to third parties.
The remaining two questions were whether the paragraph was defamatory, and whether the paragraph would still be considered defamatory even if read together with page 438 of the same book that was cited by the defendants.
The judge answered all four questions in the affirmative, before allowing the Terengganu Sultanah’s application under Order 14A of the Rules of Court 2012.
Grounds of decision
In explaining the brief grounds of his decision that effectively exempted the Terengganu Sultanah’s court appearance, the judge said that there was no dispute that Rewcastle-Brown had made the statement, and that there was also no dispute that the statement in the book has been published to third parties.
While acknowledging the defendants’ argument that there was “ambiguity” on whether the paragraph was referring to the Terengganu sultanah or sultan, the judge also noted that the Terengganu Sultanah’s lawyers have argued that any ordinary reader would conclude that it refers to her.
The judge, however, agreed that the paragraph in the book plainly and obviously refers to the Terengganu Sultanah when read as a whole and that expert help is not needed to understand its meaning, noting in particular the use of the word “her”.
As for whether the paragraph that had mentioned fugitive businessman Low Taek Jho as an alleged key player in Terengganu as well as Terengganu’s state fund that later became the federal fund 1MDB was defamatory, the judge agreed it had defamatory elements.
“This case involves 1MDB, involves the individual... Most reasonable readers will not cast a beautiful picture of whoever is associated with that person. From this aspect, I find that the plaintiff has proven that this is defamatory,” the judge said, alluding to Low as the individual without mentioning his name.
The judge said the defendants’ citing of page 438 would not change anything as it would be for them to raise as defence later, but said that the matter has been shown to be defamatory at this prima facie stage.
The judge fixed January 20 for case management to set hearing dates.
When met outside court, the Terengganu Sultanah’s lawyer Datuk Mohd Haaziq Pillay Abdullah said that the defendants sued would have to personally come to court to testify and be quizzed by her lawyers.
“Now that the plaintiff has proven the case, what will happen is that plaintiff doesn’t have to come to court, and that the defendant will now have to give evidence viva voce that means for cross-examination by the plaintiff,” he told reporters, further explaining that Order 14A allows for the partial disposal of a major portion or significant issues in court cases.
Mohd Haaziq however also confirmed that the three who were sued could appeal today’s decision if they wanted to.
In November 2018, the Terengganu Sultanah had filed the defamation lawsuit against Rewcastle-Brown otherwise known as Clare Louise Brown, the book’s publisher Gerakbudaya Enterprise via Chong Ton Sin, and the book printer Vinlin Press Sdn Bhd over the paragraph in the book.
The Terengganu Sultanah had claimed for RM100 million as compensation from each of the three defendants, and had also sought court orders for the book to be withdrawn and for its printing to cease.