BREAKING NEWS! . . . No easy answers on constitutionality of suit against S’wak Report . . .

Perfection in writing for perfection in law . . .

No easy answers on constitutionality of suit against S’wak Report . . .

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

Commentary and Analysis . . . 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 errorneously 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’s 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.

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 assist 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.

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.

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.


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Author: fernzthegreat

Joe Fernandez holds a honours degree in management, majoring in economics, and has opted from academia in law to being a jurist. He was trained professionally on the job as a journalist. He's a longtime Borneo watcher, keen on the history and legal aspects of Malaya's presence in Sabah and Sarawak. He teaches the English language privately and has emerged as a subject matter expert in public examination techniques.

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