Role of ac­tivists ap­plauded by our courts

The Sun (Malaysia) - - SPEAK UP - BY GURDIAL SINGH NIJAR

ALOT of the work by so­cial ac­tivists is of­ten not ap­pre­ci­ated. They per­form a thank­less task of high­light­ing the so­cial ills of so­ci­ety. Some­times at a great ex­pense such as when big busi­nesses come down hard and sue them for mil­lions in defama­tion when they ar­tic­u­late so­ci­ety’s woes.

A fresh and wel­come breeze blew in from the Court of Ap­peal last week. In what I con­sider to be a his­toric judg­ment, the court said that “we must not lose sight of the fact that the ex­is­tence of ac­tivists groups is very much part of to­day’s so­ci­ety, so much so that it is un­de­ni­able that they have con­trib­uted much to the gen­eral well-be­ing of the so­ci­ety at large”.

It all arose in the con­text of a now-de­funct gold min­ing com­pany in Raub (Pa­hang) su­ing, for defama­tion, the vice-pres­i­dent (VP) of a group – formed to look af­ter the health and welfare of the res­i­dents of a vil­lage. The vil­lage was lo­cated next to the com­pany’s fac­tory. The vil­lagers com­plained of ad­verse health ef­fects. A cit­i­zens’ sur­vey con­firmed the vil­lagers’ com­plaints – some rather dele­te­ri­ous ef­fects, which were not present be­fore the fac­tory started op­er­at­ing. The VP duly nar­rated the re­sults of the sur­vey at a press con­fer­ence. A news me­dia re­ported these. And the com­pany promptly sued the VP for defama­tion for talk­ing about the ill-health ef­fects – and al­legedly at­tribut­ing it to the com­pany’s op­er­a­tions.

The Ap­peals Court ac­knowl­edged the VP (an an­i­mated lady) as a bona fide ac­tivist “which by def­i­ni­tion is a per­son who cam­paigns for some kind of so­cial change”. The court held that the VP, in stat­ing her con­cern for the health of the res­i­dents, was do­ing no more than ex­er­cis­ing her right of free speech as an ac­tivist to alert the health au­thor­i­ties; and re­quire them to act to al­lay the fears of the res­i­dents. The health au­thor­i­ties did in­ves­ti­gate (and ex­on­er­ate) the fac­tory. But, said the court, that it does not make the state­ment defam­a­tory. In fact, said the court, “we say that she should be com­mended for do­ing her so­cial duty to bring to at­ten­tion what was the fear of the res­i­dents at Bukit Ko­man”.

Much like the English Court of Ap­peal that has, time and again, ap­plauded lit­i­gants for serv­ing a use­ful pur­pose in the pub­lic in­ter­est. One Mr Black­burn, for ex­am­ple, was thus praised for bring­ing an ac­tion (though un­suc­cess­ful) against the po­lice com­mis­sioner for fail­ing to take ac­tion against shops for openly sell­ing porno­graphic ma­te­ri­als, in­clud­ing to rather young peo­ple.

The Malaysian Ap­peals Court framed this defama­tion ac­tion as af­fect­ing the con­sti­tu­tional right to free­dom of speech and in the con­text of a lib­eral so­ci­ety “where the con­cept of trans­parency and ac­count­abil­ity are very much part and par­cel of our lives”; and the need for the law to re­flect the present-day val­ues of the so­ci­ety when in­ter­pret­ing the right to this free­dom of speech.

This de­ci­sion, hope­fully, will staunch the flow of defama­tion suits filed against ac­tivists fight­ing to pre­serve the in­tegrity of the en­vi­ron­ment, peo­ples’ health and much else. As recog­nised by this case, well-heeled cor­po­ra­tions (and well-con­nected in­di­vid­u­als) put words in the mouth of cit­i­zen groups to found their ac­tions. This has a chill­ing ef­fect on or­di­nary cit­i­zens threat­ened with mil­lions of dol­lars dam­age claims. Many (I know of some, per­son­ally) choose to apol­o­gise rather than risk their lit­tle sav­ings – for an al­leged wrong that could not pos­si­bly have with­stood the scru­tiny of judges of the ilk of this enlightened Court of Ap­peal.

Even merely de­fend­ing a defama­tion suit can be fi­nan­cially pro­hib­i­tive. Hence the need for “ad­vo­cates in the pub­lic in­ter­est” to be pre­pared to har­ness their le­gal learn­ing to aid un­der-funded ac­tivist “vic­tims” – all in the in­ter­est of jus­tice.

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