No Easy Answers On Constitutionality Of Suit Against Sarawak Report

Apex Court may leave it to the High Court to Rule on the suit proper based on merits!

The Federal Court, sitting as the Constitutional Court, need not immediately declare on the constitutionality of a defamation suit brought by Terengganu Sultanah, Nur Zahirah, against The Sarawak Report Editor Clare Rewcastle-Brown. See here.

The High Court of Malaya has to refer the constitutional question/s to the Federal Court.

Instead, the Apex Court may leave it to the High Court to Rule on the suit proper based on its merits. I stand corrected.

Clare has already admitted making an honest mistake when erroneously recalling an errant statement “from memory”, based on reading the media, and inserting it in her book, The Sarawak Report: The Inside 1MDB Expose in 2018. See here.

It is believed that a subsequent edition of the book corrected the error.

Generally, any admission by a party in dispute on an issue in conflict would be followed by an open apology in court and the media including The Sarawak Report.

The court would record the apology and out of court settlement, if any.

Clare ignored a rule of thumb in journalism — when in doubt, leave it out — when she did not exclude the defamatory statement on the Terengganu Sultanah from her book.

Right of Reply

It’s not known whether the High Court looked at whether the Sultanah was given the right of reply on the defamatory statement. If the right was accorded, even if not exercised, it mitigates for the Defendant.

There’s case law from Judge Harcharan Singh — the New Straits Times was sued for defamation — on enrichment through the court. The Judge Ruled against the court being party to illegalities viz. unjust enrichment through the court.

In any case, according to court procedures, the RM300m damages sought would have to be first quantified at the assistant Registrar’s office. The High Court would decide on the quantum which remains Appealable all the way to the Federal Court Review.

In civil cases, the onus is on the Claimant to ensure compliance with damages awarded. The court merely assists if the Claimant seeks its intervention.

If push comes to shove, bankruptcy and/or winding up looms, if damages due remain unpaid. The Claimant would have to act through the court.

Why The Name Sarawak Report?

The Sarawak Report’s link with Sarawak may be from the fact that Clare was born in the Territory. She spent her early years growing up in Sarawak.

The Sarawak Report began as a dedicated investigative journalism site on Sarawak. Since then, it has been mired in controversies and has been accused of one-sided reporting, exercising self-censorship, imposing censorship, and denying the right of reply to even its own content.- New Malaysia Herald

About the writer: Longtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly Chief Editor of Sabah Times. He’s not to be mistaken for a namesake previously with Daily Express. References to his blog articles can be found here.

The points expressed in this article are that of the writer and do not necessarily reflect the stand of the New Malaysia Herald.

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