Defamation, legal mumbo-jumbo and press freedom
Investigative journalist R Nadeswaran (Citizen Nades of the Sun) was turned away by the Appeal Court this week in his attempt to make his defence against a libel case.
He was alleged to have made a defamatory and racial remark on Twitter, the text message broadcasting system of the Internet, about a businessman, Datuk Mohamad Salim Fateh Din.
The crux of the case is that Nadeswaran was judged to have defamed the businessman, based only on several technicalities:
- Nadeswaran did not file a defence against the writ in the High Court
- His lawyer at the time had since admitted, according to Nadeswaran’s appeal affidavit, that he had failed to file on time, accepted full responsibility and asked that Nades not be punished for his error
- The counsel for the businessman who had sued asked the appeal bench not to allow Nades more time. The matter was academic now; the High Court had already delivered its judgment; Nades should have appealed for time before the judgment was delivered.
- The appeal court agreed, and ordered Nades to pay RM15,000 in costs
Nades might still be able to appeal against the orginal High Court judgment, or he could try to appeal to the Federal Court against the Appeal Court’s decision, a more unlikely possibility.
There is also a question of possible professional negligence by his previous lawyer if, as his appeal affidavit states, the previous lawyer had admitted accepting full responsibility for not filing on time.
Nades could sue the lawyer on the basis that such negligence had cost him undue hardship, RM500,000 in damages and at least RM15,000 or more in legal costs. Nades could also refer the lawyer to the Bar on grounds of professional misconduct.
Yet all these battles would be about procedural matters.
The real issues — did Nades defame the businessman; did Nades make that tweet; what did Nades say; how did that tweet damage the businessman’s reputation; what reputation did the businessman have to defend in the first place — all these matters did not arise in court, were not discussed, were not heard, and were not judged. Neither was Nades’s own explanation about the circumstances regarding the tweet.
Given all that, it is difficult not to conclude that Nades has been hard done by.
A basic lesson in journalism that all reporters learn is their duty to give both sides a hearing in order to produce a fair and accurate report. Citizen Nades, in breaking the Port Klang Free Trade Zone scandal among other investigative reports, could not fail to keep that basic rule in mind.
The High Court, though, heard only one side, and decided on that basis. No honest news editor would accept a story written on that basis. The High Court may have been legally and procedurally correct. But was it just?
Defamation is one of the many tools that society has to silence inconvenient journalists. Unlike newspaper licensing, it is not a major item on free-press activists’ agendas: freedom of the press becomes a headline-grabbing issue when government intervention, through censorship or repressive legislation, is applied.
Defamation is the businessman’s tool, to punish by attacking the journalist in his pocket book. It’s an unequal battle: the worth of any businessman’s reputation is hard to gauge, but the depth of his pockets is apparent to all — at the very least, it is much, much deeper than that of a salaried journalist or a freelance like the late MGG Pillai who was ordered to pay millions to Vincent Tan.
Malaysia’s abysmal standing in press freedom is the result of a crooked and corrupt regime: a system corrupted through one-sided and repressive legislation, political and crony ownership, licensing, political control — as well as a rigged legal and administrative system that loads the dice against the honest journalist and against free and fair journalism.
Few observers have doubts that Malaysia’s system is heavily weighted against the little man. If God does not play dice with the universe, one may question what dice were used against MGG Pillai, and now against Nades.