Thursday, June 9, 2016

Politicians, public officers can be criticised, rules Court of Appeal

Hafiz Yatim     Published     

Public officials, including politicians who hold public office, can be criticised by the media as such practice is essential in democracy, while they can react to criticism by holding press conferences or utilising state machinery to explain, the Court of Appeal ruled.

Besides this, Court of Appeal judge Idrus Harun said, there are relevant laws, such as the Sedition Act 1948, Penal Code, the Printing Presses and Publications Act 1984 and the Communications and Multimedia Act 1998, for the criminal prosecution of persons committing any unlawful act.

Justice Idrus, who was formerly solicitor-general at the Attorney-General’s Chambers, said this in his 31-page written judgment in the Court of Appeal decision to strike out the suit by Pahang menteri besar Adnan Yaakob against Umno-owned daily Utusan Malaysia for an article on Adnan’s leadership as MB.

This follows the paper’s criticism of Adnan’s handling of the landslide in Cameron Highlands.

The judge said Adnan holds the highest public position as chief executive and as part of the democratically-elected state government in performing a public duty for the public at large and although he claimed to be suing in his personal capacity, the Utusan Malaysia article referred to him in his capacity as the menteri besar.

“There can be no doubt that essential to this system (of democracy) is the requirement that government officials, as in Adnan's position with his eminent and exalted status, should be accountable to the people for all official matters concerning the governance and affairs of the state and be transparent in the discharge of his public duties.

“Public officials frequently receive plaudits for their achievements, but it would be entirely wrong and wholly inappropriate, whenever individual citizens or the press venture to criticise, for them to denounce the criticisms by suing their critics with defamation or subjecting them to the threat of defamation suit.

“Any such action for defamation or threat of defamation suit is certainly not the mark of a democratically-elected administration in a system which practices good governance, within which the press too has a role of undeniable importance to play, provided it performs its duty within the confines of the law,” Justice Idrus said.

The judge said there certainly were grounds of fundamental right and public interest considerations that Adnan cannot sue for libel in his personal capacity.

The article and Adnan's pleadings were clear and in the court’s view, the menteri besar has no locus standi (legal standing) to initiate and maintain this defamation suit.

Adequate protection of the law

Justice Idrus said this decision to strike out the suit by Adnan does not necessarily mean that the reputation of the government or public officials who are maligned by the press is without any adequate protection of the law.

“We with to state very clearly and firmly that while the right of freedom of speech and expression is abused, the restriction on such freedom is contravened, or where any person by speech or writing seeks to culminate any public authority or officials with malicious falsehood or false statements… such abuses can be dealt with criminal prosecutions,” he said citing the existing laws as stated above.

The judge also provided another course of action where a person could protect his or her reputation.
Considering his position as menteri besar, the court said, that person could utilise the entire state machinery and information at his disposal to defend himself with public utterances, explanations and rebuttals.

Adnan, the judges said, has every right to state his side of the story, where he could respond and even react to the Utusan Malaysia articles. Holding public office, the menteri besar would be expected to convene press conferences to respond precisely to allegations

“As a responsible mainstream media organisation, practising its own media ethics with specific ethical principles and media standards, it would be the duty of the appellants (Utusan Malaysia) publish this reaction in response so that the public can have access to balanced and fair reporting.

“With these safeguards securely in place, our decision, we should say, is by no means discriminatory and would not fetter, stifle or stultify the exercise of Adnan's right to protect his reputation and good name.

“There is therefore, sufficient legal mechanism and avenue to protect Adnan from a series of onslaughts on his reputation through malicious statements or falsehoods relating to the performance of his official functions."

Adnan filed a RM15 million civil suit against Utusan Malaysia, a newspaper owned by his party, Umno, in December 2014.

The suit is related to an article written by Utusan’s columnist ‘Awang Selamat’, titled ‘Hebat sangatkah Adnan?’ (Is Adnan that great?), which said Adnan had overstayed his presence as menteri besar.

Awang Selamat is the daily's official pseudonym, used to express its editorial stance.

The Pahang MB complained that the Awang Selamat article had brought adverse imputations upon him, resulting in public odium, ridicule and hate.

Adnan is appealing the decision

Adnan claimed the words in the article meant that he lacked integrity, failed in his duties as menteri besar, is a maligner who has overstayed his position as MB, outlived his usefulness as MB, and is a person who is brash and arrogant and who rejects any form of criticism.

Kuala Lumpur High Court judge Justice Yeoh Wee Siam last year dismissed Utusan's application to strike out the suit.

The Court of Appeal on March 1 this year ruled in a landmark decision that politicians cannot sue the media for defamation for criticising them in their capacities as public figures. It ruled that Adnan had no locus standi to initiate the suit, with the court adopting the Derbyshire principle.

In the Derbyshire County vs Times Newspapers Ltd 1994 case, England’s court ruled that local authorities cannot institute legal action based on criticism.

Justice Idrus in citing the case also cited the right of to discuss or criticise government and public officials by the citizens under Article 10 Clause (1) (a) regarding the freedom of expression.
“This fundamental right must therefore be given due recognition and protected as one which is guaranteed by the Federal Constitution. The principle clearly emanates from and is already well entrenched in the constitution, which guarantees the right to freedom of speech and expression, a right which in our judgment encompasses the right of the citizen to discuss the government and those holding public office and administration of the state,
“On that score and as public interest dictates, a democratically-elected government and its officials should be open to public criticism and that it is advantageous that every responsible citizen should not be in any way fettered in his statements, where it concerns the affairs and administration of the government,” Justice Idrus said.

The other judges in the three-member bench with him were Justice Rohana Yusof and Justice Mary Lim, who made the unanimous decision to strike out Adnan's suit.

It is also reported that Adnan, who is represented by senior lawyer Americk Sidhu, has filed leave to appeal his case before the Federal Court.
The full written judgment can be viewed here.

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