Azhar “Art” Harun, FMT (28 April 2017)
I read somewhere that Hadi Awang has commenced a defamation suit against Clare Rewcastle-Brown, the owner of Sarawak Report in the London High Court.
This is over her allegation that money from 1MDB ended up with Hadi.
In every defamation action, one of the defences available to the defendant is justification. That means it is now open to Clare to say that what she wrote was factually true.
If this defence is relied on by Clare, she would then have to explain to the High Court what 1MDB is all about. She would have to tell the court the whole story about where 1MDB got its money from, how it spent it, where the money went and how some of it ended up with Hadi.
This would entail showing to the court the money trail in respect of the money that allegedly ended up with Hadi; all the bank accounts statements and documents. Witnesses from the banks and 1MDB would have to be subpoenaed to testify. They would be ordered to bring in the requisite documents. They will be asked questions about the money.
If Clare’s counsel thinks that the witnesses are not co-operating, he would treat them as hostile witnesses. That means he can cross-examine them. That further means he can ask leading questions to them.
If the witnesses don’t appear in court, I am sure he would ask for some kind of order to compel them to do so.
I am sure he would also obtain a pre-trial order of discovery against Hadi and PAS. These are orders to compel Hadi and PAS to produce all banking documents within a certain period that are necessary to Clare’s defence and relevant to the trial.
Findings by the Public Accounts Committee and the Auditor-General may also be tendered to show what this is all about.
In addition, or the alternative, Clare could also say that she was merely making fair comments about a matter of public interest. This is what we, lawyers call the defence of fair comment and qualified privilege.
To succeed in this defence, Clare would have to show that she wasn’t motivated by any bad faith (mala fide) and that she was just commenting fairly on a matter of public interest.
She would of course have to refer to the Department of Justice (DoJ) proceedings and all the proceedings and/or investigations in Singapore, Switzerland and other countries and try to show that these are matters of public interest. To do this she might have to subpoenae officers from the DoJ and the authorities from all the other countries to testify.
This is a tall order for Clare.
It would be very, very difficult for her to win this case.
She will be ruined.
Hadi has done the right thing by suing her.
I very rarely agree with Hadi. But this is a brilliant move by Hadi.
