BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)
A LOT of the work by social activists is often not appreciated. They perform a thankless task of highlighting the social ills of society.
Sometimes at a great expense such as when big businesses come down hard and sue them for millions in defamation when they articulate society’s woes.
A fresh and welcome breeze blew in from the Court of Appeal last week. In what I consider to be a historic judgment, the court said that “we must not lose sight of the fact that the existence of activists groups is very much part of today’s society, so much so that it is undeniable that they have contributed much to the general well-being of the society at large”.
It all arose in the context of a now-defunct gold mining company in Raub (Pahang) suing, for defamation, the vice-president (VP) of a group – formed to look after the health and welfare of the residents of a village.
The village was located next to the company’s factory. The villagers complained of adverse health effects. A citizens’ survey confirmed the villagers’ complaints – some rather deleterious effects, which were not present before the factory started operating.
The VP duly narrated the results of the survey at a press conference. A news media reported these. And the company promptly sued the VP for defamation for talking about the ill-health effects – and allegedly attributing it to the company’s operations.
The Appeals Court acknowledged the VP (an animated lady) as a bona fide activist “which by definition is a person who campaigns for some kind of social change”.
The court held that the VP, in stating her concern for the health of the residents, was doing no more than exercising her right of free speech as an activist to alert the health authorities; and require them to act to allay the fears of the residents.
The health authorities did investigate (and exonerate) the factory. But, said the court, that it does not make the statement defamatory. In fact, said the court, “we say that she should be commended for doing her social duty to bring to attention what was the fear of the residents at Bukit Koman”.
Much like the English Court of Appeal that has, time and again, applauded litigants for serving a useful purpose in the public interest.
One Mr Blackburn, for example, was thus praised for bringing an action (though unsuccessful) against the police commissioner for failing to take action against shops for openly selling pornographic materials, including to rather young people.
The Malaysian Appeals Court framed this defamation action as affecting the constitutional right to freedom of speech and in the context of a liberal society “where the concept of transparency and accountability are very much part and parcel of our lives”; and the need for the law to reflect the present-day values of the society when interpreting the right to this freedom of speech.
This decision, hopefully, will staunch the flow of defamation suits filed against activists fighting to preserve the integrity of the environment, peoples’ health and much else.
As recognised by this case, well-heeled corporations (and well-connected individuals) put words in the mouth of citizen groups to found their actions.
This has a chilling effect on ordinary citizens threatened with millions of dollars damage claims. Many (I know of some, personally) choose to apologise rather than risk their little savings – for an alleged wrong that could not possibly have withstood the scrutiny of judges of the ilk of this enlightened Court of Appeal.
Even merely defending a defamation suit can be financially prohibitive. Hence the need for “advocates in the public interest” to be prepared to harness their legal learning to aid under-funded activist “victims” – all in the interest of justice.
Gurdial is a former law professor and currently a legal consultant as well as Deputy President of HAKAM.