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 and untested candidate from a tainted political dynasty amounts to defamation.
Let us test the facts against the allegation of defamation in the context of the law, the feeble definitions of defamation in Malaysia against the article written by the Tunku.
Putting aside for a moment the Tunku’s former allegiance to the DAP which is altogether an unrelated issue, lets check the facts against the backdrop of a chequered Mahathir legacy and how it has infected the Mahathir name. We can at least then attempt a valid 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 made the statements Mukhriz Mahathir alleges was made in bad faith ( a matter of fact and not law to be proved) is irrelevant to Mukhriz’s claims to having been defamed. The statements allegedly made by Tunku Abdul Aziz are statements made validly and in a form universally accepted in the context of political discussion, comment and debate.
There is also precedent within the commonwealth (Australia) which is persuasive on the subject of 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, debate and discussion. The law in Malaysia on defamation is in its infancy in Malaysia and not fully developed which disadvantages litigants and leaves them at the mercy of uninformed judges.
However Malaysian law describes defamation, bear in mind this is a creature of English law and not its vague interpretations in a far flung former colony like Malaysia:
“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 concise definition of what defamation is really about.
LAWYERS GUNS AND MONEY-WITHOUT ETHICS
To attempt to sue for defamation over the Tunku’s article two matters arise immediately for consideration. The first being capacity of Mukhriz’s lawyer to understand the law to the extent that he would have advised his client of the futility and frivolity of the action he seeks to mount in defamation against Tunku Abdul Aziz.
On the second front is the issue of lawyers understanding and regard for his legal obligations under the legal professional act and his ethical obligations as a lawyer in acting for someone like Mukhriz. It is a lawyer’s obligation to advise his client at the outset of the futility of such a suit on the basis of the facts alleged in the context of the law.
It is quite clear that there are other collateral considerations at play here by Mukhriz’s lawyers who either do not adequately understand the law relating to defamation or are acting out of self interest (maintenance and champerty) and grand standing.
DOES MUKHRIZ ENJOY THE GOOD FAME AND CHARACTER HE DEFENDS
If Mukhriz was a man of good fame and character, the contrary can be inferred from the loss of his position as Mentri Besar of Kedah at the last elections there.
He was in fact by that result “shunned” in Kedah by his constituency before the Tunku wrote the piece in which he is alleged to have defamed Mukhriz. Nothing new in the form of adverse inferences to Tunku’s article can therefore be assumed or drawn in this regard or may be said to have defamed Mukhriz from the Tunku’s article.
It can be inferred from that result in Kedah’s state elections that Mukhriz’s constituents in his own state don’t quite share that view he holds of himself as being a man of “good fame and character”.
This point needs explanation: Because Mukhriz raises his fame and personal character as an issue, his personal, political and professional integrity are the main components that underwrite trust in an election. When you don’t trust a candidate you vote him out. He is “shunned”. His reputation is measured by the election result.
In this context it is undeniable that amongst other things the Prime Ministerial ambitions of Mukhriz (and without him saying so publicly) caused his defeat as Mentri Besar at state level in Kedah his home state. It was an election issue.
That inference about his ambitions to be Prime Minister was a paramount consideration in the minds of his electorate sufficient for them to boot him out as Mentri Besar.
Therefore what the Tunku Abdul Aziz alleged in his article was without a shadow of doubt fair comment, a fair inference to draw and a reasonable and informed comment to make given the situation Mukhriz faced in Kedah, turning that outcome into a political and not personal comment.
WHY IS THE SUGGESTION OF WANTING TO BE THE PM DEFAMATORY?
Additionally it must be said that it was not Tunku alone who postulated such a proposition regarding Mukhriz’s ambitions to be Prime Minister of Malaysia.
Mukhriz deals with the situation about the suggestion he wants to be Prime Minister of Malaysia as if suggesting he wants to be Prime Minister is slander because the position of Prime Minister is considered something inappropriate, unlawful, insulting malicious or a slur.
There is no other inference that can be drawn from the ridiculousness of Mukhriz’s position to consider having been defamed by Tunku having suggested so.
It is Mukhriz’s inferences drawn out of the Tunku’s comments that need investigation. It alludes to the proposition that the position of Prime Minister is being something derogatory, defamatory, less than noble or appropriate.
Such an implication of itself is an insult to the office of Prime Minister which is fraught with possibilities and interpretations that would go against Mukhriz if it should be taken further.
QUANTITY VERSUS QUALITY – THE DANGERS IN EXCESSES
In concluding, I would suggest that Mukhriz’s lawyers should be aware of the traps and dangers of putting up large numbers of “witnesses” 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 the defence to cross examine on the issue of character and history of someone like Dr. Mahathir Mohammad. It presents the best opportunity for a skilled defence lawyer to put Dr. Mahathir’s own character on display because of the nature of this case. I wonder if Dr. Mahathir is really game for that challenge.
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 witnesses Mukhriz threatens to 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. Wit 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.