Free press vital for developed nation

The cacophony from the press on World Press Day and the divergent views from members of the ruling coalition on free speech in Malaysia fails to address the central problem. That central problem is best illustrated by Che Det aka Dr Mahathir Mohamad who in his blog, last week said

‘As for my criticism of the present government, I believe I have every right to do so...It does not mean I have to abdicate my role as a citizen. I have every right to be concerned over the flip flopping mismanagement of this country…Since the opposition is also supporting Dato Seri Abdullah, if I do not criticize, then no one will. And without criticisms the government and Dato Seri Abdullah can really go wrong.’

Mahathir is fortunate that he is making his criticisms during the stewardship of Abdullah Ahmad Badawi which will see little likelihood of repercussions against him through the courts either by way of prosecution or defamation suits.

During his own stewardship as PM, from 1982 to 2003 the right to freedom of speech and the right to criticise was drastically curtailed.

In jurisprudential theory the rationale for permitting open discussion in the case of politically related issues is essentially democratic.

First is the value of the individual in contributing to free speech which envisages that when free speech is not suppressed there is little likelihood of a sudden outpouring against the government. Unfettered free speech has been argued as providing a pressure valve in that, if there is no recourse to freely criticise the government it can lead to hatred for the government and its policies, and to go underground and subversively destroy public order.

Secondly governments which decide to place limits on release of information to the public are ultimately descending into the arena of denying free speech when the status quo is threatened.

The first reason was one of the causes for the opposition making headway in the recent general elections. That the incumbent government has itself publicly proclaimed post the elections, that there should be less restraints on freedom of speech, reflects its cognizance of this sudden outpouring by the public.

Mega defamation awards

The suppression of freedom of speech during Mahathir’s time as PM included the rise in mega defamation awards against critics including journalists, amendments to legislation and prosecution of critics.

During the decade of the 1990’s a method to discourage criticism had been to make large awards in defamation cases against critics which incorporates a punitive element. As Raja Aziz Addruse noted in a Time magazine interview in 1999, on the surge of awards against journalists and publications,

‘The danger is that in such a climate of great apprehension and fear, the media cannot fulfill their duty to critically report on events.’

Among the notable cases during this period were the defamation suits filed by corporate figures against the likes of the late MGG Pillai, Bar Council vice chairman Tommy Thomas and journalists like Raphael Pura . Pura’s case is still pending.

The Bar Council report on mega defamation awards, noted that prior to the decade of the nineties, the awards had not been in excess of RM100,000..It also noted that awards post 1990 in Malaysia, for defamation cases were the largest among Commonwealth countries.

Beginning with the case of Vincent Tan v Hassan Hamzah, where an award of RM10 million was made against the defendants (including RM2 million against MGG Pillai) for the publication of an article in Malaysian Industry.

The awards continued to increase until 2000, when Chief Justice Dzaiddin Abdullah at a speech, shortly after his appointment said, that awards in defamation suits should be scaled down .This resulted in a sharp scaling down of awards.

Amendments to legislation

In 1984 the Printing Presses and Publications Act (PPPA) was passed to replace the 1948 Act. The 1948 Act only required newspaper publishers to have a permit to print and publish a newspaper and a license to use a printing press.

The new Act of 1984 and the amendments passed in 1988 were widely criticised. Essentially the criticism is on three fronts.

First it gives the minister wide powers ‘in his absolute discretion’ to grant, refuse or revoke a licence for a printing press or permit to print and publish a newspaper or other publication. The refusal to renewal the publication permit of ‘Makal Osai’ without specific reasons, although only for a few days, reflects the power of the minister.

Second the 1988 amendments to the PPPA saw the inclusion of section 8(A)(1) which makes it an offence to publish false news maliciously. Section 8A (2) presumes malice when the accused is unable to show that he took reasonable measures to verify the truth of the news. This shifts the burden on the accused, a departure from international legal norms on free speech principles.

The prosecution of Lim Guan Eng for publishing a pamphlet which read, ‘victim imprisoned criminal free’ in relation to an incident involving a former chief minister of Melaka was done under Section 8(A)(1) of the PPPA and the Sedition Act. Lim’s words in the pamphlet arose from the fact that the charges against the former CM were withdrawn by the attorney-general on the basis there was inadequate evidence to proceed with the case. At one point the minor was placed in protective custody pursuant to a magistrate’s order.

Lim was found guilty and fined RM 10,000. On appeal the Court of Appeal sentenced him to 18 months imprisonment on each of the charges and ordered that the sentence was to run consecutively, not concurrently meaning a total sentence of 36 months.

The International Mission which visited Malaysia in 2000 and came out with the Report ‘Justice in Jeopardy: Malaysia in 2000’ said of Lim’s case

‘This case raises a somewhat wider point and there was a different outcome. It has led to concern that the judiciary is attempting to silence not just the Bar but anyone who dares to criticise the legal system and in fact anyone who dares to criticise the legal or judicial process may have to pay a very high price as did Lim Guan Eng.’

Similarly Irene Fernandez, the director of Tenaganita, was charged under Section 8 (A) (1) of the PPPA for issuing a memorandum on the abuse of migrant workers in detention centres. The memorandum was issued after Tenaganita received reports from detainees that they were being denied basic necessities like food, water and medical care which resulted in a number of deaths. As that case is pending appeal, I shall avoid comment instead of landing in the same boat as Raja Petra who has been questioned recently by the police for commenting on a pending case.

Thirdly the 1988 amendments to the PPPA ousts judicial review of the minister’s decision to revoke or suspend the license or permit. The right to be heard by the applicant on application, revocation or suspension is also denied. The effect of this is to curtail the granting of a licence or permit to those whom the authorities deem desirable thereby vitiating criticism.

Post ‘Operation Lallang’ in 1988 when over 100 critics and opposition politicians like Lim Kit Siang and Karpal Singh were detained under the Internal Security Act also saw the suspension of newspapers like The Star.

Press freedom, justice inextricably linked

Although historically in democratic countries, licencing and punishment of the press for criticising government is seen as inconsistent with the role of the press as a counterweight to government power, the executive in 1988 brooked no criticism and punishment was swift.

Justice is often viewed as the religion of emerging democracies. Press freedom and justice are inextricably linked. Without a free press, injustice cannot be exposed. The public endorsement of the opposition in the recent elections was partly a result of opposition championing of injustice which, was being swept under the carpet by the authorities.

In Malaysia, the PPPA by its wide ambit secures the punishment of those who draw public attention to injustice against the weak and the downtrodden. It has been used in flagrant disregard of international law like United Nations General Resolution 53/144 on the Declaration on the Rights and responsibility of individual groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms. Malaysia as a signatory of the UN Declaration of Human Rights is party to this General Resolution.

Specifically Article 6 (b) of the resolution gives the right to individuals and groups freely to publish and disseminate information, views and information to others on human rights and fundamental freedoms. Article 6(c) clarifies by giving the right to study, discuss and hold opinions on all fundamental freedoms and through these and other appropriate means to draw public attention to those matters.

A developed nation does not consist of the tallest buildings, the largest airport etc. Development includes repealing of archaic laws and recognition of the basic rights of the people which includes the right to information.

While the government is considering waiving the renewal of yearly licences, no mention has been made of repealing Section 8 (1) and (2) or of allowing judicial review of the Minister’s discretion. Allowing judicial review of the Minister’s discretion would strengthen the doctrine of separation of powers and affirm the judicial role within the rule of law.

The most abhorrent parts of the PPPA are a legacy of Mahathir’s time as PM. While our present government is more liberal and will not visit on him the punishments others suffered during his regime, it would be crucial, in the interests of winning the confidence of the people to repeal those provisions.

Repealing the PPPA or the abhorrent provisions, would show that the current government is open to criticism. Shortly after the elections, members of the ruling coalition publicly articulated that they had not made good use of the electronic media to reach the masses, which the opposition instead had made full use of.

What they failed to acknowledge was that, the masses had turned to receiving and exchanging information in the electronic media precisely because, the mainstream media was widely viewed as a mouth piece for the authorities. Winning the confidence of the people would include wooing them back to trusting mainstream media. That objective cannot be realised if the restrictive provisions of the PPPA are allowed to remain.

---

DR CHANDRA KANAGASABAI used to practise law in Malaysia. She holds a Ph.d in Law and is currently attached to the Institute of South East Asian Studies in Singapore as a visiting research fellow. She was also secretary-general of Hakam from1998 to 2000.