Introduction
The Court of Appeal has in recent judgment of Jason Jonathan Lo v Star Media Group Berhad & 3 Ors revisited a critical procedural question that has generated significant debate in defamation practice: “Whether the failure to provide a Bahasa Malaysia translation of impugned English words in a statement of claim renders the claim a nullity”?
The Court seized the opportunity to clarify the scope of its earlier decision in Rekha d/o Munisamy v Ortus Expert White Sdn Bhd & Anor [2021] 5 MLJ 836 and to restate the proper approach to language requirements in defamation pleadings at para [16]:
“The issue is not merely technical. It concerns the proper pleading of defamation actions in Malaysia, particularly where the impugned publication was originally in English, the actual words complained of are pleaded verbatim, the parties and the Court understand those words, and no prejudice is shown.”
Constitutional and Statutory Framework
The Court approached the language objection in stages. It first considered the constitutional and statutory framework, beginning with Article 152 of the Federal Constitution, which establishes the constitutional status of Bahasa Malaysia as the national language.
The Court observed that Article 152(4) and (5) made transitional provisions for the use of English in the superior and subordinate courts respectively, operating “until Parliament otherwise provides“. Parliament has since “otherwise provided” through the National Language Acts 1963/67 (“NLA 1963/67“).
Section 8 of the NLA 1963/67 requires proceedings, other than the giving of evidence by a witness, to be in the national language. However, Parliament did not impose an inflexible prohibition against English. The proviso to section 8 expressly empowers the Court to order that proceedings be conducted partly in the national language and partly in English, after considering the interests of justice. The Court stated at para [31]:
“The constitutional and statutory scheme must be read as a whole. Article 152 of the Federal Constitution establishes Bahasa Malaysia as the national language. Section 8 of the NLA 1963/67 gives effect to that constitutional position in court proceedings. At the same time, its proviso preserves substantive judicial discretion, in the interests of justice, to permit proceedings to be conducted partly in Bahasa Malaysia and partly in English.”
The Court further noted at para [33] that the mandatory character of the language requirement does not, by itself, answer the separate question of consequence. Section 8 does not state that every departure renders the proceedings void, and its proviso reinforces the distinction between non-compliance and automatic nullity.
Pleading Principles in Defamation
The Court emphasised the fundamental pleading principles applicable in defamation. The actual words complained of must be pleaded with precision because they define the cause of action and the case which the defendant must meet. The Court observed at para [36]:
“The words complained of are not merely evidence in a defamation action. They define the cause of action and the case which the defendant must meet.”
Where the impugned publication is in English, the English words are the very words said to constitute the libel. Pleading them verbatim serves the central function of defamation pleading: it identifies the precise publication, the precise sting, and the precise words to which the defendant must answer.
The Court acknowledged at para [39] that proper practice ordinarily requires pleadings to be in Bahasa Malaysia and, where English words are pleaded, a Bahasa Malaysia translation should be supplied. However:
“the absence of such a translation does not necessarily render the claim a nullity. The Court must consider whether the omission caused prejudice, obscured the cause of action, impaired the defence, prevented the Court from determining the meaning of the words, or caused prejudice.”
The Finding on the Preliminary Issue
The Court held that the absence of a Bahasa Malaysia translation of the impugned English words in the Re-Re-Amended Statement of Claim did not render the Plaintiff’s claim a nullity. The words were pleaded verbatim, understood and fully contested, and no prejudice was caused.
The Court further stated at para [89] that:
“Where the omission is raised in time, the Court may direct that a translation be supplied or that the pleading be amended. Where, as here, the point arises only after a full trial and the limited use of English has caused no prejudice, neither section 8 of the NLA 1963/1967, the ROC 2012 nor the authorities require the entire claim to be treated as void. This conclusion preserves the constitutional and statutory status of Bahasa Malaysia while giving effect to the proviso to section 8 of the NLA 1963/1967 and the Court’s duty to determine the real controversy in accordance with the interests of justice.”
ConclusionJason Lo (supra) represents a significant clarification of the law on the language requirements in defamation pleadings. While reaffirming the constitutional and statutory importance of Bahasa Malaysia, the Court has rejected an inflexible rule of automatic nullity and restored a contextual, prejudice-focused approach. Importantly, the requirement for a Bahasa Malaysia translation of the defamatory words was not removed by this decision; rather, the Court adopted a more flexible approach in assessing the consequences of non-compliance. The decision harmonises the national language requirement with the fundamental pleading principles of defamation and the overriding interests of justice
