DATO’ SRI DR. MOHAMAD SALLEH BIN ISMAIL & ANOR v NURUL IZZAH BT ANWAR & ANOR [2021] 2 MLJ 577

Federal Court (Putrajaya)

Defamation  

1.    The subject matter of the dispute was the statements by the Respondent alleged to be defamatory of the Appellant.

2.    The Appellant is the most responsible individual for the establishment and execution of a project to develop, promote and nurture competency in the farming of beef and cattle known as the NFC Project.

3.    The Respondent, who was the Vice President of Pakatan Keadilan Rakyat (“PKR”) and a Member of Parliament had attended a press conference concerning a development of a high-end project in Kuala Lumpur known as KL Eco City.

4.    During the conference on 7 March 2012, the Respondent had made certain statements on how public funds had been used as leverage to secure loans for the purchase of some properties in the KL Eco City.

5.    The statements were based on the findings that the NFC Project had received a soft loan of RM250,000,000.00 from the Government of Malaysia but failed to implement the NFC Project as highlighted in the Auditor General’s report.

6.    Due of the involvement of public funding, the way the money was used became a significant problem, which sparked a public outcry over the NFC Project’s alleged failure.

7.    On the same day, the statements made by the Respondent were published on Malaysiakini TV, an internet TV news site of the online news portal Malaysiakini and were seen by the general public.

8.    The alleged defamatory statement were as follows:

“Pendedahan terbaru pada hari ini oleh saudara Rafizi Ramli, bahawa dana awam yang disalurkan dalam Projek Fidlot Kebangsaan (National Feedlot Centre) telah digunakan untuk membeli Iapan unit hartanah mewah di KL Eco City pada nilaian semasa yang mencecah RM12 juta mengundang pelbagai persoalan baru.

Pertama, tindakan suami dan keluarga seorang menteri kanan yang dahulunya ahli parlimen kawasan terbabit membeli hartanah tersebut menimbulkan pertembungan kepentingan (conflict of interest) di antara tugas sebagai seorang ahli parlimen dan kemahuan keluarga beliau. You would have access to the plans, development plans of a particular area if you’re member of parliament, dan ada kemungkinan, pengetahuan ini digunakan dalam usaha pembelian oleh suami menteri kanan tersebut.”

9.     At the High Court, the judge dismissed the plaintiff’s claim and held as follows:

“as a matter of fact that an ordinary reasonable reader would not find the impugned statements to be defamatory of the plaintiffs and that the Defendant (Rs) has made out defence of justification.

10.  The Appellant’s subsequent appeal to the Court of Appeal was dismissed and the Court took the same stand as the High Court.

1.    Whether the statements made by the Respondent were defamatory of the Appellant.

2.    Whether the Respondent had proved the defence of justification.

1.    Whether the statements defamatory  –

(a) It is a settled law that an imputation would be defamatory as per Syed Husin Ali v Sharikat Percetakan Utusan Melayu Bhd & Anor [1973] 2 MLJ 56 –

“if its effect is to expose the plaintiff, in the eyes of the community, to hatred, ridicule or contempt or to lower him or her in their estimation or to cause him or her to be shunned and avoided by them”

(b) In the instant case brought to the Court, the Appellant argued that the learned judges have failed to identify that there was more than one sting found in the entire impugned statement, as they called it ‘bane and antidote situation’.

(c)  The Court is of the view that the situation at hand was not really a bane and antidote situation.  It was the consideration made upon reading the entire statement and how would the viewer assess the statement as a whole.

(d) The arguments made by the Appellant were on a related matter but a different footing.  This is because the statements by the Respondent whether there was any conflict interest by the wife of the Appellant when the properties were purchased in the KL Eco City by Appellant’s family members.

(e)  Therefore, the Court held that an ordinary reasonable reader would not have arrived at the conclusion that read in its entirety that the statement was defamatory of the Appellant.

2.    Whether the defence of justification was made out –

(a) Section 8 of the Defamation Act 1957 (“Act 286”) provides for the defence of justification as follows:

“In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.”

(b) The requirement to made out the defence of justification that there only need to be substantial justification of the whole libel and the truth of every word of the libel is not necessarily be proven.

(c)  The main part of the dispute was the allegation that public funds were misused by the Appellant for his own personal gain contrary to public interest.

(d) Nonetheless, the Appellant failed to disclose his sources of income in financing the purchase of the properties in the KL Eco City apart from making bare assertions.

(e)  The Court is of the view that it would not be far-fetched to deduce there has been misuse of public funds for personal gain by the Appellant from the entirety of the evidence at the trial.

(f)   Therefore, as upheld by the courts below, the Court took the same stand that the defence of justification had been made out by the Respondent and that the Respondent could not be liable for damages for defamation.

1.    The Act that governs the action for defamation is Act 286, the Defamation Act 1957.  Nevertheless, there is no definition for the word “defamation” in the Act.  In general, a statement may be considered defamatory if it lowers a person’s reputation in the minds of right-thinking member of the society.

2.    Defamation may be in two forms –

(a) A written statement which is called libel.

(b) A spoken statement or gesture which is called slander.