Judicial And Legal Second Thoughts On Defamation

This belief that under a new chief justice the law, especially to defamation, would right itself is misplaced. The new president of the court of appeal, if what I hear would come to pass, is a man of the ancien regime, one the Prime Minister wants ensconced. In these matters, you lose some and win some. But what is at stake is not high defamation damages but more serious: the belief that judicial independence depends on the chief justice of the day. It should not. It must not. Defamation law is turned on its head, time-honed rules ignored, and with the legal presumption that a man is ipso facto defamed if he sues for redress.

But for defamation to succeed, the aggrieved party must not only prove he had been defamed, he is out of pocket because of it. He must, in other words, prove his loss. The judge decides, at his discretion, if a man is defamed and what the damages should be. But the man must prove his further loss, if he wants more than the nominal damages the judge, until the Vincent Tan libel case, would award. In that case, that international business man of unquestioned repute, Tan Sri Vincent Tan, demanded RM20 million in defamation damages, a figure he took out of thin air, did not produce one single witness in this standard for mega damages for defamation. It set the standard for huge defamation damages without proving loss. The courts allowed general damages, hiterto at the sole discretion of the judge, to be quantified and without having to prove it.

And opened the floodgates. A crony, courtier, sibling of the establishment affirmed his place when he sued for libel. Those who did are invariably business men who could survive on their own once bereft of official support. When that is no more, they owe the banks so much money that in normal and prudent business practice would have become bankrupt. It does not matter which Tan Sri crony or courtier. Their success depends on being on the gravy train for every. That it is now accounts for their parlous state today. The establishment today cannot even acknowledge them. All are in financial difficulty.

This threat of high damages, as in the Vincent Tan case, was enough to have the matter settled out of court. That was the intention. In every case, Tan Sri Vincent Tan, and the likes of him, are challenged, the going is tough. Indeed, he settles, where possible, out of court. Or apologises in open court. It does not matter what. He cannot sustain it. This trend to high defamation damages was no more than to frighten those who did not have the same high account of one's reputation as one has. Tan Sri Vincent Tan and two of his companies now sues for RM22 million in general damages a former Malaysian journalist, one if it wends it way through the court, would reveal more than the great man would want to reveal of himself. For a start, Mr Ganesh Sahatheven challenges Tan Sri Vincent Tan's description of himself as a prominent business man, and wants him to prove that. A cause celebre neither could blink.

Since general damages need not be proved, this was taken to mean the court must take that as the basis of awarding damages. The former chief justice, and sundry judges in the high court and court of appeal, thought it a brilliant way to frighten the citizenry. The government thought it a good way to keep in place those who wrote critically of its cronies, courtiers and siblings. Those who now demand a review kept their silence then. It was left to a few men to fight it, without funds and depending upon the goodwill of lawyers prepared to fight for justice. The very men and women who now talk of checking the trend were singular in their silence when their voices meant something.

The judiciary began its descent after a high court decision which rendered UMNO illegal. It is, one hopes, not coincidental that the lawyer in that case is the court of appeal judge, who before his change of judicial mind, thought those libelled deserved all the money the defendant did not have, even if he did not prove his case. The issue of defamation is not the mega awards meted out -- that is a judicial aberration -- but to return it to what it was before the internationally known business man of unquestioned reputed thought of it as an easy way to make money. It reflects the times in which the instruments of state were bent to the will of any one who felt his status entitled him to be treated with kid gloves. The chief justice of the day was prepared to throw judicial caution to the winds and affirm whatever judgement the business man wants, even at the cost of destroying the chair he sat on.

That is the tragedy of the mega defamation awards. His successor is bent on changing the trend in the few years he has left in office. If he could bring the judiciary firmly on the path to its former glory, he would remembered in history more than he dare hope. Justice should not be at the whim and fancy of the chief justice of the day. It should be on firmer foundations. The current concern is due, in part, to judges willing to award damages for defamation against the establishment. When it was the other way around, no one cared. Now it begins to hurt. So, instead of addressing the root cause, it is nibbled into place and only the quantum is challenged. It should be more. There is, as yet, no sign it would.

M.G.G. Pillai
pillai@mgg.pc.my