Lawyers Take Notice: When Drafting Pleadings for Defamation Lawsuits, Always Have Translation of Defamatory Words in the National Language
Last week, the KL High Court dismissed a defamation suit filed by former attorney general Tan Sri Mohamed Apandi Ali’s special officer, Mabel Sheela Mutthiah against the Sarawak Report’s editor Clare Rewcastle-Brown. The dismissal was due to a technicality: the Plaintiff, Mabel, had failed to translate the alleged defamatory articles into Bahasa Melayu in her pleadings.
In his decision, Judicial commissioner Datuk Raja Ahmad Mohzanuddin Shah Raja Mohzan said that he was of the opinion that “The requirement for complete pleadings in Bahasa Melayu is tritely attributed to the language’s supremacy as a national language. In this regard, the relevant provisions are enshrined in Article 152 of the Federal Constitution as well as Section 8 of the National Language Act 1963/67 and Order 92 Rule 1 of the Rules of Court 2012,” he said.
Some background facts first: in 2015, the Sarawak Report ran an article alleging that the Plaintiff “connived” with the AG’s Office to prevent the family of the late Deputy Public Prosecutor Datuk Anthony Kevin Morais from exercising their rights to demand for a second post-mortem.
When the Plaintiff sued the Sarawak Report defamation, they filed their pleadings with a verbatim reproduction of the defamatory words in the statement of claim, as is the usual practice with defamatory matters. However, the High Court has since pronounced that the failure to attach a certified translation of the defamatory words in the national language was fatal.
The High Court made reference to two Court of Appeal rulings, to which it is bound. Although the written judgment is not out yet, we are almost certain that one of these Court of Appeal rulings is Rekha d/o Munisamy v Ortus Expert White Sdn Bhd & Anor [2021] 5 MLJ 836.
In Rekha, the Court of Appeal found that it is not enough to rely on Order 92 Rule 1(4)(b) of the Rules of Court to argue that no Malay translation is needed for the defamatory articles.
Order 92 Rule 1(4)(b) of the Rules of Court states as follows: “…any document in the English language may be used as an exhibit, with or without a translation thereof in the national language”.
Instead, the Court of Appeal held that Order 92 Rule 1(4)(b) only applies to exhibits. “It does not at all refer to pleadings. In the ‘penyataan tuntutan terpinda’ the plaintiffs did not translate the alleged defamatory statements into Bahasa Melayu. Considering the statutory provisions and case law authorities alluded to earlier, this would be fatal against the plaintiffs”.
The Court of Appeal then referred to Lim Kit Siang v Datuk Dr Ling Liong Sik & Ors [1997] 5 MLJ 523 where the High Court also reiterated that “The authorities are manifest in their approach that it is fundamental that the exact words as uttered (by the first defendant in this case) must be reproduced in the original language with a certified translation in the language of the court, in the absence of which the claim will fail’. When read with Article 152 of the Federal Constitution, Section 8 of the National Language Acts, 1963/1967 (Act 32) and Section 3 of the Interpretation Acts 1948 and 1967 (Act 388), it is clear that the “language of the court” alluded to here is in fact Bahasa Malaysia, being the national language.
The consequences of this is that a gray area in Defamation Law in Malaysia has been lifted: prior to this, some judges have accepted pleadings where the defamatory words are translated into English. The decision in Rekha confirms that the reproduction of defamatory words in a defamation lawsuit isn’t a mere exhibit like a piece of evidence, but an actual and inseparable part of the pleadings. Therefore, it must be filed together with a certified translation of the defamatory words in the national language.
To merely describe the substance, purpose or effect of the defamatory words is not sufficient; and failure to tender the national language translation is fatal.