DEFAMATION AS A POLITICAL TOOL
A recent article in the opposition financed online portal Free Malaysia Today suggests that Dr. Mahathir Mohammad and his anointed successor and hopeful contender for the office of Prime Minister of Malaysia were defamed by Tunku Abdul Aziz the former DAP president.
Whilst it is abundantly clear there is a great deal of pain, angst and gnashing of teeth in and amongst the DAP for having lost their only reputable candidate, an internationally recognized and respected diplomat in Tunku Abdul Aziz, it does not logically follow that Tunku Abdul Aziz’s criticisms of an over ambitious untested candidate from a tainted political dynasty amounts to defamation.
Let us test the facts of this allegation in the context of the law, the feeble opaque definitions of defamation in Malaysian law against the ‘offending’ article by the Tunku.
Putting aside for a moment the Tunku’s former allegiance to the DAP which is altogether an unrelated issue, let us also check the facts against the backdrop of a chequered Mahathir legacy and how it has infected the Mahathir name. We can at least then conduct a broader, fairer, and clearer analysis of that ‘storm in the tea cup’ of desperation, the the Mahathirs drink out of now.
FREE SPEECH AS A CONSTITUTIONAL RIGHT IN POLITICAL DEBATE
Whether or not Tunku Abdul Aziz’s article on Mukhriz Mahathir was made in bad faith ( a matter of fact and not law to be proved) is irrelevant at this stage to Mukhriz’s claims to having been defamed. The ‘offending article’ by Tunku Abdul Aziz contains statements made validly and in a form universally accepted in the context of political discussion, comment and debate.
There is common law precedent within the commonwealth (Australia) and the United Kingdom which is persuasive on the subject of valid defences available to a charge of defamation on the basis of a constitutional defence of “free speech”.
This defence is recognised especially in the context of political broadcasts, political debate and political discussion published in the media. The law in Malaysia on defamation is in its infancy. It is not fully developed which disadvantages litigants and leaves them at the mercy of uninformed judges and over ambitious lawyers ready to argue cases for the sake of personal glory.
However Malaysian law describes defamation, bear in mind this is a creature of English law and not a product of the vague and confused interpretations given it by lawyers in a far flung former colony like Malaysia. Malaysian courts would do well to inform themselves of the development of the laws of defamation especially where it concerns publication of material relating to political commentary and discussion. To date it appears the Malaysian legal profession and its judiciary operate in a very dark vacuum where the subject matter is concerned.
“The publication of any false imputation concerning a person, or a member of his family, whether living or dead, by which (a) the reputation of that person is likely to be injured or (b) he is likely to be injured in his profession or trade or (c) other persons are likely to be induced to shun, avoid, ridicule or despise him.”
This is a brief but concise definition of what defamation is really about.
LAWYERS GUNS AND MONEY-WITHOUT ETHICS
In the threat to sue for defamation over the Tunku’s article, two matters arise immediately for consideration.
The first being the capacity of Mukhriz’s lawyers to understand the law relating to defamation to the extent that they should have advised their client of the prospects of success (remote) against the more realistic futility and frivolity of the action he seeks to mount against Tunku Abdul Aziz. There are consequences for such failures.
On the second front is that vexed issue of a lawyers understanding and regard for their legal obligations under the Legal Professional Act. Along with this come their ethical obligations as lawyers acting for a client like Mukhriz.
It is a lawyer’s paramount professional and ethical obligation to advise their client at the outset of the futility (where it is obvious) of pursuing a course of action that is fraught with dangers such as losing and incurring pecuniary loss. Typically lawyer after examining the basis and all of the facts alleged in the context of the law provides a memorandum of written advise to his clients about the prospects of success and the legitimacy of pursuing his causes.
From all the available information, this appears to be a fishing expedition and a distraction by the Mahathir camp which is more likely to backfire on each of Mukhriz and his father Tun Dr. Mahathir Mohammad for what a trial is likely to throw up in unintended consequences to them.
It is quite clear that there are collateral considerations at play here. Mukhriz’s lawyers either do not adequately understand the law relating to defamation or are oblivious to the inherent risks of pursuing the case or that they are acting out of self interest (maintenance and champerty). There is also the very real possibility that this matter is being pursued as a distraction for the Mahathirs other problems. Real problems
DOES MUKHRIZ ENJOY THE GOOD FAME AND CHARACTER HE DEFENDS
If Mukhriz is indeed claiming to be a man of “good fame and character” ( a matter to be tested in open court), the contrary can also be inferred in rebuttal from the loss of his position as Mentri Besar of Kedah and of being ‘forced out’ of office there.
He was in fact by that result “shunned” in Kedah by his constituency before the Tunku wrote the piece in which the Tunku is alleged to have defamed Mukhriz. Nothing new in the form of adverse inferences from the Tunku’s article can therefore be assumed or drawn in this regard; Nothing it may be said could have by the wildest stretch of the imagination defamed Mukhriz from the Tunku’s article either.
In fact it can safely be inferred from that result where he was forced to resign as Mentri Besar in Kedah, that Mukhriz’s constituents and colleagues don’t quite share that view he has of himself as a man of “good fame and character“.
This point needs some explanation: Mukhriz raises his fame and character as an issue. It is personal, political and professional integrity which are the main ingredients that underwrite the virtue of trust especially in politics. When you don’t trust a candidate you vote him out. He is “shunned”. Mukhriz’s reputation can be measured by that result and the outcomes in Kedah.
In this context it is undeniable that amongst other things the Prime Ministerial ambitions of Mukhriz (and without him saying so publicly) was a political issue that caused his resignation as Mentri Besar in Kedah. It was an issue prior to and after the event in Kedah.
The other issue, a vital issue that dogs Mukhriz, is the reputation of his father and mentor Tun Dr. Mahathir. Dr. Mahathir now volunteers to be witness in the defamation suit against Tunku Abdul Aziz. Dr. Mahathir’s incredulous shadow and his past looms long and large over Mukhriz wherever he goes.
Therefore what the Tunku Abdul Aziz commented on in his article was without a shadow of doubt fair comment, a fair inference to draw and a reasonable and informed comment to make. Nothing malicious about it. Nothing novel or new about it.
Further and given the situation Mukhriz was faced with in Kedah, the background and publicly available information that produced that outcome in Kedah for Mukhriz was a valid enough basis for the Tunku’s article.
The fundamental driver of that article is not a personal grievance. It is by any standard fair political comment and a matter of public interest.
Mukhriz is man who holds public office in a democracy and as such should by subject to public scrutiny for his actions and omissions like any other politician. It is what forms the justification for such articles as that written by Tunku Abdul Aziz against a charge of defamation.
The kind of information in the Tunku’s article is what makes a democracy robust, keeps politicians accountable and the democratic system workable.
WHY IS THE SUGGESTION OF WANTING TO BE THE PM DEFAMATORY?
Additionally it must be said that it was not the Tunku alone who postulated such a proposition regarding Mukhriz’s ambitions to be Prime Minister of Malaysia.
Mukhriz deals with the suggestion he wants to be Prime Minister of Malaysia as if to say, the suggestion amounts to an insult, is slander because the position of Prime Minister is considered something so inappropriate, demeaning, unlawful, malicious or a slur. Thats in fact what Mukhriz and his lawyers are suggesting by suing Tunku Abdul Aziz the journalist.
There is no other inference that can be drawn from the ridiculousness of Mukhriz’s claims to having been defamed by the Tunku, having suggested in writing he Mukhriz wants to be Prime Minister of Malaysia.
There is no action or attempted action by Prince Charles threatening to sue any publication or journalist for defamation, for suggesting he is impatient to be King of England. And the law of defamation has its genesis in England.
It is Mukhriz’s inferences drawn out of the Tunku’s comments that need investigation and scrutiny. It alludes to the proposition that the position of Prime Minister is something derogatory, defamatory, less than noble or inappropriate. Such an inference of itself is an insult to the office of Prime Minister and is fraught with possibilities and interpretations that would go against Mukhriz if it should wish to pursue the matter to trial.
QUANTITY VERSUS QUALITY – THE DANGERS OF EXCESSES-MAHATHIR’S PAST
In concluding, I would suggest that Mukhriz’s lawyers inform themselves of the traps and dangers of putting up large numbers of “witnesses” like Dr. Mahathir and his friends, and the purposes for which they bring these witnesses to court.
The larger the number of witnesses especially if it should include former Prime Minister Mahathir Mohammad, the greater the opportunity for a skilled defence lawyer to cross examine Dr. Mahathir on the issue of his character and history which inevitably becomes an issue in the proceeding.
A skilled lawyer would make a picnic of the Dr. Mahathir’s past in office in the witness box. The information coming out of such a trial would aid the inquiry into the Forex, Bank Bumiputera Finance, Maminco and Petronas scandals immensely.
I wonder if Dr. Mahathir if correctly appraised of the risks he faces as a witness would be game enough to face such a challenge as witness on Mukhriz’s behalf. The civil law applies here and there is very little witness protection available to him in open court.
No party to a proceeding has property over a witness even if they call that witness and call them their own. That’s where an inherent danger lies in bringing the kind of witnesses Mukhriz threatens to bring such proceedings.
Manufacturing causes and attempting to reinforce them with a large number of witnesses does not multiply the truth. It blurs it and opens to door and an opportunity to embarrassment. It is not the number of witnesses in a matter that matter but the quality of the evidence they are able to independently corroborate in a matter.
For Mukhriz it must be said, one test of honest conviction is consistency. If he is a doughty defender of free speech, then he should reasonably be expected to apply that principle universally, in all circumstances, without fear or favour.
In this case Mukhriz clearly has a lot of soul searching to do before threatening to put his father on the stand as a witness. With the kind of sordid and criminal allegations against the man about his activities during his tenure in office as Prime Minister, the pair must be mad to even make mention of the idea to the press. But lets see.
In this case the Mahathir clan is giving us a peep into what they will be like with free speech if they do ascend to form the next government.