Lawyers: Mega suits will curtail freedom of speech

Such action will not help in our push towards transparency

MARCH 26, 2008 – Malaysia Today editor Raja Petra Kamarudin was ordered by the Alor Star High Court to pay RM4 million in general damages to Universiti Utara Malaysia (UUM) vice-chancellor Tan Sri Dr Nordin Kardi and UUM.

Kharleez Zubin, The Malay Mail

THE legal fraternity says that although there is a check and balance in the judicial system to ensure fair play, the freedom to commence mega defamation suits will curtail the freedom of speech among civic-minded citizens and impede accountability.

Bar Council president Ragunath Kesavan said the plaintiff or the party suing for damages runs the risk of having to pay for the legal costs to the defendant.

“If the court finds that the amount sought by the plaintiff is not provable or justified, the court may award the party a lower amount and award costs to the defendant,” he said.

Asked if there was a precedent, he said there had been none so far involving defamation suits but there had been quite a few in other kinds of damages.

“The plaintiffs can claim any amount of damages. It is their choice. But they also must bear in mind that the court can dismiss the party’s claim or lower the quantum of damages, and also make the plaintiff pay for the defendant’s legal costs.

“Although there is no precedent in Malaysia, like other forms of damages there is provision in the law,” he said.

The other negative aspect of mega defamation suits, he said, was its impact on the freedom of speech.

“It would have a chilling effect on freedom of speech and people would be afraid to say or speak up in public,” he said.

Practising lawyer of 30 years, S.I. Rajah, said there were cases where the court had not awarded any monetary damages when it found the plaintiff had not suffered real monetary loss due to defamation.

“In such a case, the court can award punitive or exemplary damages not intended to compensate the plaintiff, but to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff,” he said.

They were giving their views on the re-emergence of mega suits, with the latest by Transport Minister Datuk Ong Tee Keat who filed a RM500 million suit against Kuala Dimensi Sdn Bhd chief executive officer Datuk Seri Tiong King Sing.

The suit, for making an “unfounded and malicious defamatory allegations” that Ong had received RM10 million from Tiong, was filed yesterday at the High Court in Kuala Lumpur.

Another leading lawyer and former Bar Council president, Datuk Kuthubul Zaman Bukhari, who is also the current Bar Council chairman of the arbitration and ADR committee, said such mega suits would not augur well for a country that was pushing for transparency and freedom of speech.

“Besides, how do you prove the aggrieved party is worth what he is claiming for in damages for alleged defamation even if his suit has merit?”

Echoing the sentiments of his colleagues, Malaysian Anti-Corruption Commission Advisory Board member and former Bar Council president, R.R. Chelvarajah, also thinks mega defamation suits will impede freedom of speech and curtain civic-minded citizens from speaking up.

“I am on record as speaking out against mega defamation suits some 10 years ago. I am saying it again that such suits will not augur well if we are to pursue the agenda of transparency and accountability.”

He said there was a time when there was a lull in mega suits. “But now it seems it is making a comeback. This will for sure muzzle the Press and keep people from speaking out on many things.”

Highest amount awarded, in Malaysian Courts, for defamation/ libel

1) ON Oct 22, 1994 – The High Court awarded Berjaya Group Bhd chairman Tan Sri Vincent Tan RM10 million in damages, the highest amount ever awarded in Malaysia after the latter sued journalist M.G.G Pillai, Malaysian Industry magazine editor Hassan Hamzah, magazine publisher Media Printext (M) Sdn Bhd and printer Ling Wah Press Sdn Bhd for libel.

Pillai and Media Printext were ordered to pay RM2 million each, Hassan RM3 million, Ling Wah Press RM1 million while three others, comprising journalists Soh Eng Lim, V. Thavanesan and contributor Dr Barjoyai Bardai, were to pay RM2 million for conspiring to defame Tan in four articles.

The awarding of such a high sum was then seen to have set the trend for other multi-million ringgit suits for defamation.

2) MARCH 26, 2008 – Malaysia Today editor Raja Petra Kamarudin was ordered by the Alor Star High Court to pay RM4 million in general damages to Universiti Utara Malaysia (UUM) vice-chancellor Tan Sri Dr Nordin Kardi and UUM.

He was ordered to do so by Deputy High Court Registrar Priscilla Gengadaran over a defamatory article posted on Malaysia Today on Dec 16, 2006 entitled ‘Dato’ Dr Nordin Kardi Ciplak Karya Saya? Mohon Penjelasan’ (Datuk Dr Nordin Kardi plagiarises my works? Please Explain) which Raja Petra picked up from another website, authored by Muhtar Haji Suhaili.

Nordin, as the first plaintiff and UUM filed the suit against Raja Petra as the first defendant and also against Parti Keadilan Rakyat, Suara Keadilan chief editor and editor on Feb 25, 2007.

Raja Petra was ordered to pay RM2 million to UUM and Nordin respectively, while Suara Keadilan chief editor and editor were to pay RM 1 million each to Nordin and RM500,000 each to UUM.

Biggest amount sought in damages, in Malaysian Courts, for defamation/ libel

1) SEPT 29, 2003 – PC Suria Nascom Group Sdn Bhd filed a whopping RM1.8 billion suit against New Straits Times Press (M) Bhd (NSTP).

The suit was filed by computer manufacturer PC Suria Nascom together with two of its subsidiaries, Perbadanan Komputer Nasional Bhd, PC Suria Malaysia Sdn Bhd as well as PC Suria Nascom chief executive officer of PC Suria Nascom, Zulkifli Amin Mamat at the Civil High Court in Wisma Denmark over what they claimed were defamatory articles which had appeared in The Malay Mail on Aug 12, Sept 1, 4, 5, 9, 10, 11 and 15 of that year.

The plaintiffs were contending the articles contained false, unsubstantiated and sensationalised facts, which they alleged were defamatory and resulted in huge business losses.

2) JAN 2, 2001 – Former Immigration Department directorgeneral Datuk Aseh Che Mat, together with nine media organisations and two publishers, were collectively sued for defamation, to the tune of RM1.3 billion, by employment agency Agensi Pekerjaan dan Levi Al Zaman Sdn Bhd managing director Badrul Zaman P.S Md Zakariah. The latter claimed TV3 aired a Press conference on Feb 24, 1998, held by Aseh, regarding Badrul, including visuals of him in handcuffs.