KUALA LUMPUR – Legal eagles have slammed the criminal defamation laws in Malaysia as being “archaic and outdated”, conveying their reservations over statutes which could hamper free speech, especially among media practitioners.
This comes amid the criminal prosecution of former The Edge editor-in-chief Ahmad Azam Mohd Aris on September 13 over two articles on alleged penny stock manipulation following a police report lodged by Metronic Global Bhd non-executive director Datuk Kua Khai Shyuan.
Speaking to The Vibes, several legal experts also asked why the case was being classified as a criminal offence instead of a civil one, especially since the former involves the usage of taxpayers’ funds through the deputy public prosecutors’ office and the Attorney-General’s Chambers (AGC).
Expressing concern over the decision to resort to criminal prosecution, Advance Tertiary College academic director and senior law lecturer Daniel Abishegam urged the AGC to refrain from getting involved in what is essentially a row between two private entities.
“Defamation (charges) are sometimes used as a tool to suppress dissent while criminal defamation serves the purpose of striking a little more fear in the hearts of people.
“The AGC should stay out of squabbles like this, especially when it’s between two individuals,” he said, adding that the time and effort undertaken to pursue the criminal charges against Azam are “not a great use of public resources”.
He also asserted that while the original purpose of the criminal defamation laws was “to prevent a loss of confidence in the government,” the legislation now holds little bearing in today’s day and age.
“I strongly believe that (criminal defamation laws) are a creature of a different time and have no place in a modern society where opposing ideas should be celebrated and challenged, not suppressed.”
The law regarding criminal defamation is enshrined under Section 499 of the Penal Code, which provides that whoever publishes accusations intending to harm an individual is said to have defamed that person.
Section 500 of the Penal Code dictates that individuals found guilty of defamation can be slapped with a prison sentence of up to two years, or a fine or both.
Meanwhile, former Bar Council president Ragunath Kesavan pointed out that many jurisdictions have since repealed the law, including the United Kingdom, which abolished the law through the Coroners and Justice Act 2009, making civil remedies the only avenue for individuals to pursue defamation action.
“Criminal defamation laws are archaic, and it is an abuse of the criminal justice process when it is used in favour of a private citizen,” he said regarding Azam’s case, highlighting that sufficient civil remedies remain available to persons potentially hurt by slander or libel.
Claiming that limited state resources should not have been used in cases like Azam’s, he called on the AGC to issue a clarification on the situation, saying: “There must be an explanation provided by the AGC on what public purpose or activity is being protected or defended.”
Expressing a similar take, lawyer Datuk David Gurupatham noted that since The Edge is a publication geared towards the business community, with readers invested in local and overseas equity markets, the criminal charges against Azam might bring serious repercussions in the future.
“Criminal defamation actions such as this may send the wrong message (to investors) that there is media suppression here. This can impact our market,” he said.
“It may also be against public interest that members of the press are so afraid of criminal repercussions that they are hesitant to publish information possibly vital to the public.”
However, the criminal defamation law appears to have the backing of some, including former Bar Council president Salim Bashir Bhaskaran, who argued that the right to free speech is not unlimited and is still subject to provisions under the federal constitution.
“One must realise that while the right to freedom of speech is highly valued, the constitution conceives reasonable restrictions.
“In that context, criminal defamation (action) cannot be characterised as being disproportionate to freedom of speech,” he said.
He also cited the case of Subramanian Swamy v Union of India, in which the Indian Supreme Court held that criminal prosecution on defamation charges will not negate the right to speak and express opinions. – The Vibes, September 21, 2022
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