The Federal Court decided today to allow them leave to appeal against the Court of Appeal’s decision last year.
A three-man bench chaired by Chief Judge of Sabah and Sarawak Richard Malanjum approved three legal questions to be argued during appeal at a date that would be fixed later.
One question is whether the alleged defamatory words, spoken in jest and in a hyperbolic or exaggerated fashion, can qualify for the defence of fair comment.
During the appeal hearing, the bench will also determine whether it is appropriate for a judge hearing a striking out application to decide whether alleged defamatory words spoken are fact or opinion.
Lawyer Razlan Hadri Zulkifli, who represented Rafizi and portal owner Chan Chee Keong, told the court: “There was , and whether my client is entitled to the defence of fair comment must be determined after a trial.”
He said the trial judge could only determine if Najib and Rosmah had been maliciously defamed after witnesses had been called and questioned.
“That is the reason we have a trial in defamation cases, and the defendants can be cross-examined before the court makes a ruling,” he said.
Lawyer Wan Azmir Wan Majid, who represented Najib and Rosmah, urged the bench to dismiss the leave application, saying the Court of Appeal was correct in its findings.
“An alleged defamatory statement – that Rosmah had pocketed money – is not fair comment that an MP like the defendant can rely on,” he said.
On November 29, a three-man Court of Appeal bench chaired by Rohana Yusof, in reversing a High Court ruling, said Rafizi and Chan could not rely on the defence of fair comment.
However, no grounds were given then.
High Court judge Noraini Abdul Rahman had in April last year dismissed the couple’s bid to remove Rafizi and Chan’s defence of fair comment as it was premature.
Noraini had wanted the trial to proceed and she would decide later whether the two were entitled to the defence.
Najib and Rosmah sued Rafizi and Chan in 2015 for allegedly defaming them, as the Pandan MP’s statement implied that Najib had unlawfully stolen the people’s money in connection with the oil subsidy removal.
Rosmah claimed Rafizi had suggested that she unlawfully benefited from the money.
The couple also claimed Chan had failed to exercise responsible journalism to verify the claims before publishing a video.