KUALA LUMPUR (May 2): Former attorney general Tan Sri Mohamed Apandi Ali's special officer could have won her defamation suit against Sarawak Report editor Clare Rewcastle-Brown, if not for a technicality - that all court pleadings must be filed in Bahasa Melayu, according to the High Court judicial commissioner who presided over the case.

Judicial commissioner Datuk Raja Ahmad Mohzanuddin Shah Raja Mohzan, who ruled against the former aide Mabel Sheela Mutthiah after submissions concluded on Thursday, said it was because the plaintiff had failed to translate two out of three articles that she contended had defamed her into Bahasa Melayu, which was part of the requirements for the suit's amended statement of claim. He then awarded RM15,000 as costs to Rewcastle-Brown.

This was despite his finding that one of the articles written by Rewcastle-Brown and published on her website in 2015 - entitled 'How AG's Office connived to prevent a second post-mortem on Morais' - was clearly defamatory to Mabel.

“It is not necessary to read between the lines of such an article to determine whether or not it contains defamatory elements,” he said.

In the article, Rewcastle-Brown wrote that Mabel and Apandi had “bullied and then bribed” family members of deputy public prosecutor Datuk Kevin Morais, who was brutally murdered in 2015, before a second post-mortem could be performed on his body.

“The article clearly suggested that the plaintiff was involved in a conspiracy of some kind at the highest level to cheat the family of the late Datuk Anthony Kevin Morais of their right to a second independent post-mortem report.

“According to the article, this alleged despicable act was carried out after being backed by the powers that be and with the support of the highest authority given that the remains were snatched the same morning as the application to have the remains postmortem for the second time was filed,” Ahmad Mohzanuddin noted.

“On the basis of the evidence presented to me, the article was published worldwide, which clearly damaged and gravely injured the plaintiffs reputation and her judicial and/or public office. It remains trite that nothing can be done to restore the plaintiff's past life and what she has been through all these years. As it stands, there can be no restoration of the plaintiff's past life or the suffering she has endured over the years,” he said.

Ahmad Mohzanuddin also said he was bound by the decisions of two prior court of appeal decisions, one of which was a 2009 decision in the RM100 million defamation suit Datuk Seri Anwar Ibrahim brought against Tun Dr Mahathir Mohamad, which ruled that lawyers are bound by the supremacy of the Malay language or Bahasa Melayu in court proceedings.

Malay must also be used in all documents filed in court, the COA's written judgement stated when it dismissed an appeal by Anwar on grounds that the memorandum of appeal he filed was in English and not Malay.

In the current case, Ahmad Mohzanuddin said strict language compliance is mandatory for all court cases and that Mabel’s failure to translate the articles into Malay was the reason she lost her case.

“It is hereby my finding that although some of the arguments made by the plaintiff (Mabel) appear to be providing some serious issues for consideration, and the fact that no party, particularly the defendant, is prejudiced by the failure to translate the alleged defamatory articles into Bahasa Melayu, I am unable to escape the fact that such strict compliance is mandatory for all pleadings filed in court,” he said.

He said the requirement for pleadings in Bahasa Melayu is “tritely attributed to the language's supremacy as a national language”, as 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.

Mohzanuddin also said he would have awarded Mabel RM1 million instead of the RM100 million she was seeking via the suit if she had won the case.

“At the risk of repeating the obvious, my main finding is that the plaintiff is not entitled to any compensation for damages resulting from the defamatory articles as a result of the failure to provide the certified translation in Bahasa Melayu. Nevertheless, based on my hypothetical academic findings on the above merit-based issues, I must proceed to the issue of the quantum of damages that may be awarded to the plaintiff.

"In this aspect, I continue to take the same approach to ensure that if this matter proceeds to appeal, I must be seen as being thorough in my examination of the issues posed to me for the Court of Appeal's benefit,” he said, before awarding the hypothetical amount of RM1 million to Mabel.

Mabel’s lawyer Datuk David Gurupatham said they would appeal their case and challenge this technicality at the COA.

The big takeaway, he said, was that his client, who had been fighting to clear her name, had been vindicated by the court's findings.

Lawyer Guok Ngek Seong acted for Rewcastle-Brown in the case.

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