Star Media Group Berhad v Jason Jonathan Lo (B-02(NCvC)(W)-2096-12/2023)

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ASOHAN ARYADURAY TARRENCE TAN …RESPONDENTS (In the Matter of High Court of Malaya at Shah Alam In the State of Selangor Darul Ehsan, Malaysia Civil Suit No.: BA-23NCvC-32-08/2019 Between Jason Jonathan Lo …Plaintiff

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Star Media Group Berhad

Esther Ng Sek Yee

Asohan Aryaduray Tarrence Tan …Defendants HEARD TOGETHER 2 IN THE COURT OF APPEAL OF MALAYSIA

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ASOHAN ARYADURAY TARRENCE TAN … APPELLANTS AND JASON JONATHAN LO …RESPONDENT (In the Matter of High Court of Malaya at Shah Alam In the State of Selangor Darul Ehsan, Malaysia Civil Suit No.: BA-23NCvC-32-08/2019 Between Jason Jonathan Lo (NRIC No.: 750427-13-5645) …Plaintiff

And

Star Media Group Berhad

Esther Ng Sek Yee

Asohan Aryaduray Tarrence Tan …Defendants 3 CORAM: COLLIN LAWRENCE SEQUERAH, JCA (now FCJ) FAIZAH BINTI JAMALUDIN, JCA ONG CHEE KWAN, JCA SUPPORTING JUDGMENT Introduction [1] I have had the privilege of reading the advance copy of my learned sister, Justice Faizah Jamaludin’s comprehensive judgment, and I fully concur with her grounds of judgment. I would further support the decision that Rekha d/a Munisamy v. Ortus Expert White Sdn Bhd & Anor [2021] 5 MLJ 836 (“Rekha”) should no longer be good law based on the reasons set out hereinbelow. [2] Appeal No. B-02(NCVC)(W)-2076-12/2023 (“Appeal 2076”) and Appeal No. B-02(NCVC)(W)-2096-12/2023 (“Appeal 2096”) arise from a defamation action commenced in the High Court of Malaya at Shah Alam. The claim was founded upon articles and publications alleged to be defamatory, and were all published in the English language. In Appeal 2076, the Appellant is Jason Jonathan Lo, who was the plaintiff below, and the Respondents are Star Media Group Berhad and three of its journalists and editors, who were the defendants. In Appeal 2096, the Appellants are Star Media Group Berhad and three of its journalists and editors, and Jason Jonathan Lo, is the 4 Respondent. For this judgment, Jason Jonathan Lo shall be referred to as “the Plaintiff” and Star Media Group Berhad and three of its journalists and editors, “the Defendants”. [3] The High Court (per Justice Alice Loke Yee Ching) had allowed the Plaintiff's claim on 9.11.2023. Significantly, whilst the Plaintiff’s Re-Re-Amended Statement of Claim had reproduced verbatim the defamatory articles and publications in their original language in English, no certified Bahasa Malaysia translations of these articles and publications were provided in the pleadings. Notwithstanding the aforesaid, no objections were taken by the Defendants on the omissions, and indeed, Rekha’s case was never brought to the attention of the Court by the parties. In fact, throughout the appeal before this Court, including during the oral submissions, none of the parties had highlighted the judgment in Rekha. [4] It was only in the course of deliberating the judgment for the appeal that Rekha was raised by my learned sister Justice Faizah Jamaludin, and this Court felt compelled to draw counsel’s attention to the case and invited counsel to submit on the correctness or otherwise of the judgment and whether we are bound by the same. If this Court is bound by Rekha, then the appeal must be allowed since there is no dispute that the Plaintiff’s Re-Re-Amended Statement of Claim contained no Bahasa Malaysia translations of the impugned articles and publications, let alone certified ones. This is because, based on Rekha, such omissions would be fatal to the claims. 5 [5] Before this Court, during further oral submissions, the Plaintiff contended, and we agree, that Rekha was wrongly decided in this respect. The ruling in Rekha that the omission of a certified Bahasa Malaysia translation of the defamatory words in the pleadings is per se fatal to a plaintiff's defamation claim is: (i) inconsistent with the long-established common law rule on the pleading of defamatory words; (ii) did not consider the prior Court of Appeal decisions in Hassan & Anor v Wan Ishak & Ors [1961] 1 MLJ 45 (“Hassan”) and Karpal Singh a/l Ram Singh v. DP Vijandran [2001] 4 MLJ 161 (“Karpal Singh”) (iii) a misreading of the authorities, in particular the Court of Appeal decision in Dato' Seri Anwar bin Ibrahim v Tun Dr Mahathir bin Mohamad [2010] 2 MLJ 41 (“Anwar 2010 CA”) and in Lim Kit Siang v Datuk Dr Ling Liong Sik & Ors [1997] 5 MLJ 523 (“Lim Kit Siang”) and (iv) unsupported by the Federal Court's subsequent decision in Dato' Seri Anwar Ibrahim v Tun Dr Mahathir bin Mohamad [2011] 1 MLJ 145 (“Anwar 2011 FC”). [6] For the reasons that follow, we hold that Rekha is per incuriam on this issue and should no longer be followed. Court’s Analysis and Deliberations A. Language in Court Proceedings [7] The statutory framework governing the language to be used in court proceedings in Malaysia is well established and must be set out at the outset. Regrettably, it is the misapplication of this framework that lies at the heart of the error in Rekha. 6 [8] Article 152(1) of the Federal Constitution provides that the national language shall be the Malay language. Section 8 of the National Language Act 1963/67 (Consolidated and Revised 1971) (the NLA) provides: “All proceedings (other than the giving of evidence by a witness) in the Federal Court, the Court of Appeal, the High Court or any Subordinate Court shall be in the national language: Provided that the Court may either of its own motion or on the application of any party to any proceedings and after considering the interests of justice in those proceedings, order that the proceedings (other than the giving of evidence by a witness) shall be partly in the national language and partly in the English language.” [emphasis added] [9] Order 92 rule 1(1) of the Rules of Court 2012 (“ROC 2012”) mirrors this provision. It states that any document required for use in pursuance of these rules shall be in the national language. This necessarily includes pleadings. [10] Two features of the above statutory framework are critical to the present discussion. First, the obligation to use the national language is mandatory — the word "shall" is used, and the courts have consistently held this to be imperative [See: the analysis of Abdul Malik Ishak JCA in Anwar 2010 CA at paragraphs [52]– [53] and of Abu Bakar Jais JCA in Rekha at paragraph [52]]. Second, and of equal importance, the proviso to section 8 confers a wide and real discretion on the court to order that proceedings be conducted partly in the English language and partly in the National Language, having regard to the interests of 7 justice. As will be demonstrated below, this proviso is not perfunctory but a substantive judicial power. [11] The Federal Court in Anwar 2011 FC, per Arifin Zakaria CJ, explicitly confirmed at paragraph [19]–[21] that the proviso to section 8 of the NLA gives the court wide discretion, either of its own motion or on the application of any party, to order that proceedings be conducted partly in English having regard to the interests of justice. The Federal Court further confirmed that where leave has been granted to conduct proceedings in English, what transpires is "clearly within the proviso to s 8 of the NLA 1963/67" and it is not open to a party to thereafter complain about the use of the English language. [12] It is against this framework, namely, mandatory national language that is subject to a wide judicial discretion of the court, that the pleading rule in defamation cases must be understood. B. The Common Law Rule on Pleading Defamatory Words [13] It is settled law in Malaysia and in England that in an action for defamation, the plaintiff must set out in his pleadings the very words complained of, verbatim. It is not sufficient to merely describe the substance, purpose, or effect of the alleged defamatory statement. The material fact is the very utterance or publication of the defamatory words, and those words must be precisely pleaded so that the court may judge whether they are capable of bearing a defamatory meaning. 8 [14] This rule has its roots in the common law principles articulated in cases such as Bruce v Odhams Press Ltd [1936] 1 KB 697, Harris v Warre (1879) 4 CPD 125 and Workers' Party v Tay Boon Too [1975] 1 MLJ 47. It was applied locally in Lim Kit Siang, where Zainun Ali JC (later FCJ) held at pages 526–527: “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.” [emphasis added] [15] The aforesaid passage by Zainun Ali JC (as she then was) has unfortunately been misconstrued to support the proposition that a failure to produce a certified translation of the impugned defamatory words in the language of the court per se will be fatal to the claim. [16] The rule in Lim Kit Siang, as stated by Zainun Ali JC, has two distinct components, namely (a) verbatim reproduction of the exact words in the original language in which they were uttered and (b) a certified translation of those words into the language of the court. The second limb presupposes the first. In other words, the original words must first be reproduced, and then translated into the court's language. [17] A critical distinction must be drawn here, which was elided in Rekha. The purpose of the rule requiring a certified translation in the language of the court is to enable the court to exercise its function. It is to ensure that the court can read and assess the 9 words complained of. The rule is not a stand-alone rule imposing an obligation to translate defamatory words into Bahasa Malaysia. When the impugned defamatory statement is in a foreign language, the court would not be able to read, understand, and assess the actual words complained of to determine if they are capable of bearing a defamatory meaning. In defamation, liability turns not merely on what a witness says the words meant, but on the precise words used, their ordinary and natural meaning, innuendo, tone, context, and how the ordinary, reasonable reader of that language would understand them. A judge cannot properly discharge that function if the words are unintelligible to the court. It is for this reason that where the impugned statement is in a language other than the language of the court proceedings, the statement itself must ordinarily be exhibited together with a certified or verified translation. The rationale is therefore not merely procedural formality but is tied to fairness to the parties, the court’s adjudicative function, accuracy of meaning, and certainty to the pleaded cause of action. [18] The application of this purpose is starkly demonstrated in Hassan, where the Court of Appeal (per Thomson CJ), in dealing with a situation where the alleged defamatory words were spoken in Malay but pleaded in English, held at page 45 as follows: “As a matter of practice when defamatory words are alleged to have been spoken in a language other than the language of the Court these words should be set out in their original form in the pleadings and in addition a translation of them into the language of the Court should be pleaded. Admittedly that was not done here but, again, admittedly the point that it was not 10 done was never raised at any stage of the interlocutory proceedings or of the trial .But although in my view the actual words used in the language in which they were used should have been pleaded the failure to do so cannot be held to have been fatal to the case of the respondents.” [emphasis added] [19] Hassan’s case is of cardinal importance. The Court of Appeal, even in 1961, took the view that the failure to plead the defamatory words in their original language and to provide a translation into the court's language is not necessarily fatal. The Court of Appeal took a pragmatic approach to pleading in defamation actions involving words in a foreign language. At the time, court proceedings were conducted in English. The omission to plead the defamatory words in their original Malay language together with an English translation was not fatal because, on the facts of the case, the defendant was not prejudiced, and the substance of the complaint was sufficiently clear. Thomson CJ characterised it as a matter of practice and refused to hold that the failure was per se fatal. Unfortunately, counsel in Rekha did not bring this case to the attention of the court, and as a result, this decision was not considered in Rekha. [21] In Karpal Singh, the Court of Appeal held that the failure to provide a certified translation of the alleged defamatory words was not fatal. The court emphasised substance over technicality. Where the original defamatory statement was in English and reproduced, the absence of a certified translation in Bahasa Malaysia, if there is no prejudice to the defendant, would not invalidate the action. The Court of Appeal stated that in Malaysia, 11 Malay and English are commonly understood and used interchangeably in court proceedings. [22] Although the Court of Appeal in Karpal Singh expressed a preference that defamatory words in a foreign language should ordinarily be pleaded in the original language with a translation, it treated the omission (where the foreign language is English) as a matter of practice rather than an inflexible mandatory rule whose breach automatically defeats the claims. Again, this case was not brought to the attention of the learned judges in Rekha at all. C. Anwar 2010 CA decision [23] The decision in Anwar 2010 CA (Abdul Malik Ishak, Azhar Ma'ah, and Syed Ahmad Helmy JJCA) has been routinely cited, including in Rekha, as authority for the broad proposition that any court document not in Bahasa Malaysia is void, incurably defective, and must be rejected. With respect, that reading is too broad and does not accurately reflect the ratio in that case. [24] In Anwar 2010 CA, the court was seized with a very specific issue, which was the failure by the appellant to file a memorandum of appeal in the national language as mandatorily required by rule 18(1) of the Rules of the Court of Appeal 1994, read with section 8 of the NLA and article 152(1) of the Constitution. The memorandum of appeal in that case was in the English language, unsigned, undated, and was one of multiple serious deficiencies in the record of appeal. The court dismissed the appeal and struck out the record accordingly. 12 [25] The ratio of Anwar 2010 CA is narrow and context-specific. The memorandum of appeal, being a formal and mandatory foundational document prescribed by the Rules of the Court of Appeal to be in the national language, cannot be validly filed in English. The court, quite rightly, held that the failure to file a memorandum of appeal in Bahasa Malaysia renders the record of appeal "useless" and not competent [See: paragraphs [50]– [53]]. [26] What is critical and what was overlooked in Rekha is that the court in Anwar 2010 CA was dealing with a document that is structurally and procedurally distinct from the way in which defamatory words are pleaded within a statement of claim. A memorandum of appeal is the formal instrument by which an appeal is brought. It is the very foundation of the appellate proceedings. A defamatory statement reproduced verbatim within a statement of claim that is pleaded in the national language, on the other hand, is not "a document required for use in pursuance of the rules" within the meaning of Order 92 rule 1. The defamatory words are a fact pleaded in a statement of claim. They are evidence of what was published, not a separate procedural document. [27] Moreover, and with the greatest of respect to the Court of Appeal in Rekha, the passage from Anwar 2010 CA at paragraph [49], cited with approval at pages 853–854 of Rekha, in which Abdul Malik Ishak JCA quoted Nik Hashim JC's words in Zainun Bte Hj Dahan lwn Rakyat Merchant Bankers Bhd & Satu Lagi [1998] 1 MLJ 532 to the effect that the national language "cannot be taken lightly" was made in the specific context of an application filed 13 entirely in English language contrary to rule 92(1). Those words were not directed at the question of whether English language exhibits or reproduced quotations within a pleading need to be separately translated. [28] The Court of Appeal in Anwar 2010 CA, in fact, acknowledged the distinction between core procedural documents and evidentiary material. Order 92 rule 1(4)(b) of the ROC 2012 (formerly Order 92 rule 1 of the Rules of the High Court 1980) expressly provides: "any document in the English language may be used as an exhibit, with or without a translation thereof in the national language." This proviso expressly permits exhibits to be in English without translation. In this regard, the defamatory words reproduced in a statement of claim, being the content of the pleaded fact, are more analogous to an exhibit than to a procedural pleading document. [29] Accordingly, the proposition extracted from Anwar 2010 CA in Rekha that the failure to translate alleged defamatory words into Bahasa Malaysia in the pleadings renders the plaintiff's claim fatal goes far beyond what was decided in Anwar 2010 CA, and is a misreading of that authority. D. The Anwar 2011 FC case [30] The Federal Court's decision in Anwar 2011 FC, delivered by Arifin Zakaria CJ, with James Foong FCJ and Suriyadi JCA concurring, further provides grounds why Rekha was wrong. In Anwar 2011 FC, the Federal Court was asked to decide whether the grounds of judgments of the Court of Appeal and the High Court delivered in the English language were null and void for 14 contravening Article 152 of the Constitution and section 8 of the NLA. The Federal Court dismissed the application and held at paragraphs [19]–[21]: “It would appear that the proviso gives a wide discretion to the court as regards the use of the national language and the English language in any proceedings having regard to the interest of justice ... it is not open to the party at this stage to complain concerning the use of the English language. However, it should be noted that in compliance with the NLA 1963/67, all the cause papers filed in this case were in the national language”. [31] Two aspects of Anwar 2011 FC directly bear on the correctness of Rekha. First, the Federal Court confirmed that the proviso to section 8 of the NLA is substantive and wide, and that where parties have conducted proceedings in English with the court's leave or acquiescence, they cannot retroactively challenge the validity of those proceedings. Second, the Federal Court rejected a liberal and absolutist approach to language requirements. The issue before the court was whether the grounds of judgment written in English contravened section 8 of the NLA. The Federal Court held that “proceedings” in that section did not include grounds of judgment, and therefore the English grounds were valid. Significantly, the Federal Court did not treat every departure from Bahasa Malaysia as rendering the proceedings void. Instead, it adopted a purposive interpretation directed at the substance and administration of justice. [32] This textual and purposive approach to section 8 is wholly inconsistent with the expansive and rigid reading adopted in Rekha, which treated the absence of a translation of any English- 15 language content within a pleading as a jurisdictional defect. The Federal Court, being the apex court, commands precedence over a coordinate division of the Court of Appeal. To the extent that Rekha is inconsistent with the approach of the Federal Court, it cannot stand. E. The Defendants’ Contentions [33] In their Further Written Submissions, the Defendants advanced several contentions in support of the ruling in Rekha. Each shall be addressed in turn. [34] The Defendants’ first contention was that Rekha was correctly decided because Article 152(1) of the Federal Constitution and section 8 of the NLA impose a mandatory and non-derogable obligation to conduct all court proceedings in Bahasa Malaysia, and that this constitutional imperative leaves no room for the courts to condone pleadings that reproduce substantial English-language content without translation. This cannot be right. The constitutional and statutory framework is not as absolute as the Defendants suggest. The proviso to section 8 of the NLA expressly confers on the court a substantive discretion to permit proceedings to be conducted partly in English where the interests of justice so require. That proviso is part of the same statutory provision upon which the Defendants rely. To read section 8 as imposing an unqualified prohibition is to read it selectively and in a manner that renders the proviso otiose, a canon of construction that is not permissible [See Govindaraju v Krishnan [1987] 1 MLJ 77 and the principle that all parts of a statute must be given effect. 16 [35] The Defendants’ second contention is that the requirement for a certified Bahasa Malaysia translation of the defamatory words is not merely procedural but is substantive in nature, in that without such a translation, the court is unable to assess the defamatory character of the words complained of, and that the plaintiff’s cause of action is accordingly incomplete as pleaded. We are unable to accept this contention. As stated above, the purpose of the verbatim pleading rule is to enable the court and the opposing party to identify precisely which words are complained of. Where the defamatory publications are in the English language, as they are in the present case, reproducing those words verbatim in English fulfils that purpose entirely. The court and the Defendants were at all times fully aware of the specific words in issue. There was no ambiguity, no concealment, and no inability on the part of the court to assess the alleged defamatory meaning. To characterise the absence of a Bahasa Malaysia translation as a substantive defect rather than a procedural one is to mistake form for substance. The defamatory sting, if any, inheres in the English words as published. It does not acquire or lose its legal significance through the act of translation. Indeed, this was the reason why the Defendants never raised any issue at all with the omission of certified translations of the impugned articles and publications. [36] Third, the Defendants contend that even if Rekha was wrongly decided, this Court ought not to depart from it in the exercise of its discretion to follow coordinate decisions, on the basis that litigants and legal practitioners have ordered their affairs in reliance upon Rekha, and that certainty in procedural law 17 demands continuity. With respect, we do not accept that the doctrine of judicial comity operates to perpetuate a per incuriam decision that produces manifest injustice. Whilst the doctrine of stare decisis serves the values of certainty, consistency, and the reasonable expectations of litigants, it does not immunise a decision from correction where that decision was reached without regard to binding authority and is demonstrably incorrect. As the Federal Court observed in Dalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1 and in Adorna Properties Sdn Bhd v Boonsom Boonyanit @ Sun Yok Eng [2001] 1 MLJ 241, the courts retain the power and the duty to correct errors of law that cause injustice, even where those errors have stood for some time. Rekha has not been followed with sufficient consistency or over a sufficient period to have generated the settled reliance interests that would militate against its correction. [37] Fourth, the Defendants urge upon us that the correct remedy, if the Plaintiff’s pleading was deficient, was to apply to amend the pleadings at the appropriate time, and that the Plaintiff’s failure to do so despite numerous opportunities is indicative of either oversight or strategic choice that should not now be remedied on appeal. This is a double-edged sword. Just as the Plaintiff had not amended his pleadings notwithstanding the opportunities to do so, the Defendants, too, had not availed themselves of the opportunities to raise their objections to the pleadings. In truth, as in Hassan’s case, the Defendants were never prejudiced nor unclear as to the substance of the Plaintiff’s complaints. In any event, the appropriate response to a deficiency of this nature (even if it had been one) would have been to require an 18 amendment or to invoke Order 2 rule 1, not to dismiss the claim. As this Court observed in Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119 in a cognate context, courts ought not to use technical deficiencies as instruments of injustice. [38] Fifth, the Defendants contend that the Lim Kit Siang decision of Zainun Ali JC squarely supports Rekha, because the judgment in that case expressly states that a defamation claim will fail in the absence of both verbatim reproduction and a certified translation in the language of the court. As stated above, this contention misreads the ratio of Lim Kit Siang. The key holding in that case was directed at the failure to plead verbatim words at all. The reference to a certified translation was collateral to and dependent upon the primary requirement of verbatim reproduction. Moreover, the Defendants’ reliance on Lim Kit Siang ignores the earlier Court of Appeal authority in Hassan, which expressly held that failure to translate defamatory words cannot be fatal, and which was not considered in Rekha. Where two authorities are in tension, the later one adopted in Rekha should not be preferred where the earlier one is binding and was not considered. [39] Accordingly, none of the Defendants’ contentions, individually or cumulatively, provides a basis for upholding the decision of the High Court on the Rekha point. In fact, to his credit, learned counsel for the Defendants had, during oral submissions, conceded that Rekha is wrong and that this Court ought to set the law right. We intend to do so and accordingly, will now proceed to state why Rekha is per incuriam. 19 [40] A decision is rendered per incuriam and consequently does not bind or represent good law where it was made in ignorance of a relevant statutory provision or a binding or sufficiently persuasive authority which, had it been drawn to the court's attention, would have led to a different result [See: Young v Bristol Aeroplane Co Ltd [1944] KB 718 as applied in Malaysia in Kerajaan Malaysia & Ors v Tay Chai Tea & Ors [2012] 3 MLJ 149 (FC) and numerous subsequent decisions. [41] We hold that Rekha is per incuriam on the translation point for the following distinct reasons. [42] First, Rekha did not consider Hassan, which is binding on this Court in the same way as any other Court of Appeal decision of coordinate standing, and to which all the judges in Rekha were bound. Hassan held that the failure to plead defamatory words in their original language, together with a translation, cannot be "fatal" to the plaintiff's case. Had the court in Rekha considered Hassan, it could not have reached the conclusion it did without expressly overruling it, explaining why it should not be followed, or distinguishing it. None of this was done. The authority was simply not brought to the court's attention. [43] Second, Rekha misapplied Lim Kit Siang. The passage cited on page 853 of Rekha, that the defamatory words "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," was torn from its context. In Lim Kit Siang, Zainun Ali JC was addressing the failure of the plaintiff to plead the very words of the defamatory statement at all. They had instead pleaded a 20 journalist's paraphrase of what was said. The key finding was that the plaintiff had not pleaded the original words verbatim. The reference to a certified translation in the language of the court was a secondary observation about what should accompany verbatim reproduction. It was not an independent, stand-alone rule that every English-language defamatory statement must be translated into Bahasa Malaysia as a condition precedent to the cause of action. [44] Third, Rekha misread Anwar 2010 CA. That case decided that the memorandum of appeal, a primary procedural instrument, must be in Bahasa Malaysia. It did not decide that verbatim reproductions of defamatory words within a pleading filed in Bahasa Malaysia must themselves be translated. The court in Rekha at paragraphs [49]–[52] transposed a rule designed for stand-alone procedural documents to quoted content within a pleading, without justification. [45] Fourth, Rekha was decided without reference to the Federal Court's binding decision in Anwar 2011 FC. The Federal Court's reasoning that the proviso to section 8 confers wide discretion and that parties who have conducted proceedings in English cannot retroactively complain, and its purposive approach to the scope of section 8, are irreconcilable with the rigid per se rule adopted in Rekha. A coordinate division of the Court of Appeal is not at liberty to ignore the reasoning of the Federal Court that bears directly on the issue before it. The omission of Anwar 2011 FC from the analysis in Rekha, which was also not highlighted by the counsel to the corum, further renders it per incuriam. 21 [46] Fifth, the rule in Rekha is productive of manifest injustice and is conceptually unsound. A defamation action is by its very nature concerned with the precise words used. Where those words are in a language other than Bahasa Malaysia, as is frequently the case with online publications, English-language newspapers, and social media posts, the plaintiff must reproduce them verbatim. That verbatim reproduction is a substantive requirement of the pleading rule. To require the plaintiff also to produce a certified translation of those verbatim words as a condition of maintaining the action, on pain of outright dismissal, imposes a technical and drastic burden without a clear statutory basis. Order 92 rule 1(4)(b) expressly permits documents in English to be exhibited without translation. It is anomalous and irreconcilable with the scheme of the ROC 2012 to hold that reproduced defamatory words within a pleading are subject to a stricter rule than formal exhibits. [47] Sixth, the overriding objective of the ROC 2012, as confirmed in Order 1A, is that the court shall deal with cases justly. This includes ensuring that cases are disposed of in a way that is fair to all parties. A rule that dismisses a defamation claim in its entirety, potentially after years of litigation, solely because the English-language words complained of were not translated into Bahasa Malaysia in the pleadings, is disproportionate and contrary to this overriding objective. As Hamid Sultan Abu Backer JCA observed in Vellasamy a/l Ponnusamy & Ors v Gurbachan Singh a/l Bagawan Singh & Anor [2020] MLJU 695: "The primary function of the courts from time immemorial is to dispense justice. Where courts decline to hear cases on merits but are inclined to 22 dismiss cases on technicalities, then the primary purpose for the courts' existence is defeated." [48] For the avoidance of doubt, we state the correct legal position as follows. [49] In a defamation action, a plaintiff is required to plead verbatim the exact words complained of. Where those words were spoken or published in a language other than the national language, best practice requires that they be set out in their original form and accompanied by a certified translation into the language in which the proceedings are being conducted. The court's language, for this purpose, is Bahasa Malaysia as required by section 8 of the NLA. However, where leave has been granted to conduct proceedings in whole or in part in the English language, expressly or by the court's acquiescence, the requirement for a Bahasa Malaysia translation is correspondingly modified by the proviso to section 8. [50] The failure to provide a certified Bahasa Malaysia translation of English-language defamatory words reproduced within a pleading does not automatically and inevitably render the claim fatal. Such failure is a procedural irregularity which the court may address by: (a) directing that a translation be furnished within a stipulated period; (b) exercising its discretion under the proviso to section 8 of the NLA to permit the proceedings to be conducted partly in English; or (c) applying Order 2 rule 1 of the ROC 2012, which empowers the court to treat non-compliance as an irregularity and to make such order as it thinks fit rather than treating the proceedings as void. The court is not required to 23 strike out the claim or dismiss the action as the first and automatic consequence of such non-compliance. [51] To the extent that Rekha holds otherwise, that the failure to translate defamatory words in the pleadings is per se fatal to the plaintiff's claim, that holding is per incuriam and is overruled. [52] We wish to express our appreciation to learned counsel on both sides for their thorough and helpful submissions. Dated the 15th day of July 2026. -sgd- (ONG CHEE KWAN) JUDGE COURT OF APPEAL, MALAYSIA 24 COUNSEL: Appeal 2076 For the Appellant: Chong Yee Lim, Alfred [Messrs. A. Chong & Co.] For the Respondents: Mohd Izral bin Mohamed Khairy Esther Soo Li Jiat [Messrs. Izral Partnership] Appeal 2096 For the Appellants: Mohd Izral bin Mohamed Khairy Esther Soo Li Jiat [Messrs. Izral Partnership] For the Respondent: Chong Yee Lim, Alfred [Messrs. A. Chong & Co.]