Law of Defamation

Wednesday, February 21, 2007


Sued into Silence

Sued into Silence
A surfeit of defamation cases in Malaysian courts threatens free expression

In some countries journalists have to keep their heads down to avoid bullets. In Malaysia the dangers are different, but just as real. Increasingly, what would be considered a normal exercise of their craft in other democracies can land reporters with a multimillion dollar defamation suit or--as in the case of Murray Hiebert of the Far Eastern Economic Review--in jail. A Canadian national, Hiebert wrote an article in January 1997 about a legal dispute involving the son of a Court of Appeal judge. The reporter was charged with contempt of court and deprived of his passport as a condition of bail. Some two years later, on Sept. 11, the Court of Appeal upheld his conviction, while reducing his sentence from three months to six weeks. He is appealing to the Federal Court but has elected to serve his term so he can get his passport back. Hiebert is now in Kuala Lumpur's Sungai Buloh prison because of something he wrote.

Malaysia's judiciary finds itself, once again, under close international scrutiny. Hiebert is the first journalist to be imprisoned in Malaysia in the line of duty. Recent advances in information technology mean that it is no longer only law professors, lawyers and judges who consider whether an utterance is offensive. Thanks to the communications revolution, the general public can now examine allegedly scandalous statements, in their full context, and reach its own informed judgment on what they mean and whether their author should be punished. Although Malaysia no longer uses a jury system (findings of fact are made by judges), ordinary members of the public are still drawing their own conclusions.

And the public attaches importance to the rights of freedom of speech and expression. The judgment against Hiebert has much in common with a string of other recent decisions, including the cases of Lim Guan Eng (an opposition MP jailed for 18 months for "maliciously publishing" a pamphlet), Param Cumaraswamy (a United Nations special rapporteur on the independence of judges and lawyers who has been denied immunity from legal process in relation to a quotation published in a British legal periodical) and M.G.G. Pillai (in which an individual journalist was ordered to pay $800,000 for making defamatory statements against a businessman). Defamation suits against journalists are becoming a common feature of the Malaysian scene. Damages sought in the cases currently pending run into the tens of millions of dollars. The danger is that, in such a climate of great apprehension and fear, the media cannot fulfill their duty to critically report on events.

Of course, the right to freedom of speech is not absolute. There must be some restrictions in order to protect citizens and the judiciary from scurrilous attacks. But at the same time, the courts must weigh the two competing rights carefully, to ensure that the right to free speech is not obliterated.

The courts' increasingly frequent and wide use of the law of contempt is cause for grave concern--not only to journalists, politicians and ordinary citizens, but also to the legal profession itself. In the past few months, several Malaysian lawyers have been committed for contempt for discharging their duties as advocates and solicitors. In the first trial of former Deputy Prime Minister Anwar Ibrahim, for example, the judge frequently threatened to commit defense counsel for representations made to the court in their professional capacity. One member of the defense team, attorney Zainur Zakaria, was committed and sentenced to three months' imprisonment for filing an affidavit on behalf of his client. (He has been released on bail awaiting his appeal.)

Litigants, too, have been summoned to show cause why they should not be committed for contempt for expressing what they believed to be legitimate complaints of unfairness in the administration of justice.

In the classic 1900 British case of R v. Gray, the court made clear that the law of contempt was subject to an important qualification: "Judges and Courts alike are open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of court. The law ought not to be astute in such cases to criticize adversely what under such circumstances and with such an object is published; but it is to be remembered in this matter the liberty of the press is no greater and no less than the liberty of every subject of the Queen."

It is in accordance with that statement of principle that the courts must reach decisions in contempt cases. And the public will measure their decisions against that principle.

Raja Aziz Addruse is a member of the Malaysian Bar Council. He was chairman of the council in 1976-78, 1988 and 1992


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