Defamation as a political tool
A recent article in the online portal Free Malaysia Today suggests that former Premier Mahathir Mohammad and his anointed successor and hopeful contender for the office of Prime Minister of Malaysia were defamed by Tunku Abdul Aziz Tunku Ibrahim, the former DAP national vice-chairman.
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 member, 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.
Whether or not Tunku Abdul Aziz made the statements Mukhriz Mahathir alleges were 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 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.
The law in Malaysia on defamation is in its infancy and not fully developed. And 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:
“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.)
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 lawyer to understand the law relating to defamation to the extent that he should have advised his client of the prospects of success (remote) against more realistic futility and frivolity of the action he seeks to mount in defamation against Tunku Abdul Aziz.
On the second front is that vexed issue of a lawyer’s understanding and regard for his legal obligations under the Legal Professional Act along with his ethical obligations as a lawyer in acting for someone like Mukhriz. It is a lawyer’s paramount obligation to advise his client at the outset of the futility (where it is obvious) of pursuing such a course of action after examining the basis and all of the facts alleged in the context of the law. It appears that this is a fishing expedition and a distraction by the Mahathir camp.
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 acting out of self interest (maintenance and champerty) and the need for a distraction for the Mahathirs.
Another issue, a vital issue that dogs Mukhriz, is the reputation of his father and mentor Mahathir who volunteers to be a witness in the defamation suit against Tunku Abdul Aziz. Mahathir’s incredulous shadow looms long and large over Mukhriz wherever he goes.
Therefore what 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 at one time held public office in a democracy and as such should by subject to public scrutiny for his actions and omissions. It is what forms the justification and fair comment defence for such articles as that written by Tunku Abdul Aziz against a charge of defamation.
Additionally it must also be said that it was not the Tunku alone who postulated such a proposition regarding Mukhriz’s ambition 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 he wants to be Prime Minister amounts to slander because the position of Prime Minister is considered something so inappropriate, unlawful, insulting, malicious or a slur. That is in fact what Mukhriz and his lawyers are suggesting.
There is no other inference that can be drawn from the ridiculousness of Mukhriz’s claims to having been defamed by the Tunku having written he wants to be Prime Minister of Malaysia.
Consider the following: No one has heard of Prince Charles threatening to sue for defamation the scribes who suggest 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. It alludes to the proposition that the position of Prime Minister is something derogatory, defamatory, less than noble or appropriate. 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 he should wish the matter to be taken further.
In concluding, I would suggest that Mukhriz’s lawyers should be aware of the traps and dangers of putting up large numbers of “witnesses” like 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, the greater the opportunity for a skilled defence lawyer to cross examine Mahathir on the issue of his character and history which inevitably becomes an issue in the proceeding. I wonder if Mahathir, if correctly appraised of the situation would be game enough to face such a 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 Mukhriz threatens to bring to this proceeding.
Manufacturing causes and attempting to reinforce them with a large number of witnesses does not multiply the truth. It blurs it and opens the door to an opportunity to embarrassment.
It is not the number of witnesses in a matter that matters but the quality of the evidence they are able to independently corroborate in the 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 term in office as Prime Minister, the pair must be mad to even make mention of the idea to the press. But let’s 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 of Malaysia.