BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)
MEDIA stalwarts are enthused by a recent Court of Appeal decision on freedom to criticise politicians. Rightly so. A three-member panel made an important ruling: that a public figure must accept criticism of his conduct as a public official.
The court struck out the defamation suit brought by the mentri besar of Pahang against Utusan Malaysia for an article which, he complained, implied that he was useless as an MB as he had failed in his duties, used his political position to abuse critical media, and was a liability to his political party.
The article, ruled the court, expressed a critical view of the MB in his official and not personal capacity. It would be against the public interest if those exercising public functions were insulated from criticism. This would fetter freedom of speech. This was in the realm of political discussion of a public official – and the media could give their views without any threat of being sued.
What is the ambit of this ruling?
The court based its decision on a 1993 decision of UK’s House of Lords, Derbyshire County Council v Times Newspapers Ltd.
The popular Sunday Times newspaper criticised the local council for entering into improper financial deals that adversely affected the pension fund. The local council sued for defamation. The suit was dismissed. The House of Lords said that a local authority is no ordinary corporation. It had added features: it was a government and a democratically elected body. “It is of the highest importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism,” said Lord Keith in his judgment.
It was not just a matter of the right of liberty of the press. It went beyond that to the fundamental right of freedom of speech. Else a “despotic or corrupt government can more easily stifle opposition by a series of civil actions than by criminal prosecutions”.
This principle is sacrosanct. As long ago as 1923, the US Supreme Court declared in the case ofCity of Chicago v Tribune Co:
“Every citizen has a right to criticise an inefficient or corrupt government without fear of civil as well as criminal prosecution. This absolute privilege is founded on the principle that it is advantageous for the public interest that the citizen should not be in any way fettered in his statements, and where the public service or due administration of justice is involved he shall have the right to speak his mind freely.”
The UK Court approved this dictum. It said that quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of a matter – which it is very desirable to make public.
The court deprecated the “chilling effect” induced by the threat of civil defamation action.
For example, in Singapore it has been used time and again against opposition politicians. The huge damage awards crippled some of them; and prevented them from contesting elections – as happened to my good friend, the late JB Jeyaretnam. The former Singapore solicitor-general Francis Seow highlights these eloquently in Beyond Suspicion? – The Singapore Judiciary. Lee Kuan Yew distinguished himself by a whole host of legal suits against dissidents and detractors for alleged defamation in Singapore courts. And won them all.
The upshot of our Court of Appeal decision is that any citizen – and this includes the journalist and the media – can criticise any public figure or authority in respect of conduct or work carried out in a public capacity. There is absolute privilege for doing so. There is a qualifier, though: there should be no attack of a (direct) personal nature arising from that criticism.
What about criticisms or comments unrelated to public figures or official work? Then you must prove that it was an occasion of qualified privilege and that you were justified in making that comment.
The person must show that he had a duty to report that matter; and that there was a corresponding duty or interest for the public to receive that information. Put more simply and directly: whether the public was entitled to know the particular information. This “duty-interest” provision appears in our Defamation Act.
Several matters can be shown to establish this; such as: the nature, status and source of the material published and the circumstances of the publication.
Then you can claim the privilege to comment without fear of being sued successfully.
Gurdial is about to end his 16-year stint as a law professor at University of Malaya, and Deputy President of HAKAM.