29
Dec
09

 

ROYAL COMMISSION

The call by Opposition leaders Lim Kit Siang and Dr Syed Husin Ali for a royal commission to investigate the allegations of corruption against Tun Dr Mahathir Mohamad in Barry Wain’s book Malaysian Maverick: Mahathir Mohamad in Turbulent Times is typical of the knee-jerk reaction that Malaysian politicians are well-known for. Instead of  trying to understand the substance of the issue and seeing it for what it really is, they take the easy way out by echoing each other in a politically – motivated stand.

To invoke a royal commission to substantiate the findings of  a book written by the journalist- turned- researcher at a Singapore think- tank is to instigate the whole nation into giving credence to one writer’s perception and interpretation of Malaysian political history. The assumption here is that the researcher’s credibilty is so highly respected and his allegations so expertly substantiated that they warrant a royal commission of inquiry to serve the national interest. 

Writing a sensational book alone does not make one a credible researcher or writer. Defaming the leaders of both the government and the Opposition may be politically expedient in the highly-charged mood of local politics in the run-up to the next general elections. There may be groups with vested interests who churn out these character assasination slurs to influence those who are gullible and believe in rumours and loose talk. However, a larger section of the Malaysian electorate are rational and expect the validity and truth of these charges and counter charges to be proven with evidence or in a court of law.

The onus is thus on Barry Wain to provide reports and documentation of  Dr Mahathir’s alleged corruption and misappropriation of public funds to the tune of RM 100 billion as appendices in his book if he wants to be hailed as a credible researcher. Otherwise, he will remain as a sensationalist political analyst who is tempting fate by exposing himself to a string of libel charges not only by Dr Mahathir but the other individuals implicated in his book.

The onus is also on the Malaysian public to accept that one writer’s interpretation of local politics (past and present)does not spell the doom of the nation’s history. In the quest to respect  freedom of speech and basic human rights, there must be a greater tolerance of differing viewpoints and perspectives on the nation’s development. The Malaysian journey has been and will continue to be strewn with the good, the bad and the ugly both in terms of national policies and procedures as well as the individuals managing them. And we must accept that there will be many more writings on the politics and history of the nation – some defamatory, some complimentary. History will place us where we deserve to be as a nation! History will place our leaders where they deserve to be warts and all!

For the moment, it is imperative that Malaysians are given the right  to read Barry Wain’s book and judge for ourselves whether he is a credible writer/researcher and not just a stooge of the Opposition!

By Norman L. Rosenberg | Jan 1, 2008
The law of libel has a long, often bewildering, history. In almost any era, the legal literature contains numerous complaints about the irrationality, complexity, and venality of libel law. The Supreme Court’s direct involvement with the law of libel, which began only in 1964 with New York Times Co. v. Sullivan, extended this legacy of confusion.  From the outset, the ambitious scope of libel law encouraged problems. According to an often‐cited definition, common law libel covers all written communications that “tend to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or to induce an evil opinion of one in the minds of right‐thinking persons, and to deprive one of their confidence and friendly intercourse in society” (Kimmerle v. New York, N.Y., 1933). Including both civil suits for damages and criminal prosecutions, libel law also has a close (though little‐used) relative, slander, which covers spoken defamation.

In theory, the law gave plaintiffs a favorable legal arena in which to confront detractors. Common‐law procedures allowed persons claiming injuries to reputation to take the offensive. Once it was established that a publication had been communicated and fell within the broad definition of libel, common law presumed damage to reputation. At this point, courts also required, in effect, that defendants “prove their innocence” by offering some type of legal justification for their libels. Evidence of truth became the most common defense, especially in civil suits, but courts gradually came to recognize a variety of “privileges,” even for libelous falsehoods.

These common‐law privileges acknowledged that libel laws, if strictly enforced, could seriously curtail public discussion. The most general privilege, “fair comment,” permitted defendants to publish libelous opinions about matters of general interest, such as the quality of artistic works or the qualifications of political figures. It did not extend to false statements of libelous facts, and plaintiffs could defeat fair comment, and other “conditional” defenses, by showing that defendants had exceeded their privilege by publishing with “malice.”

During the nineteenth century, some state courts also recognized a broader, though still conditional, privilege in political libel cases. Under what came to be called the “minority rule,” defendants could escape strict liability for libelous falsehoods when making nonmalicious criticisms of the “public” conduct of political officials and candidates for office. The citizenry’s need to learn about corruption and its general interest in free speech, proponents of this rule argued, outweighed the reputational concerns of individual politicians.

Until 1964, however, most states confined the scope of these conditional privileges. During the early nineteenth century, some even limited the defense of truth by requiring that plaintiffs demonstrate they had published even libelous truths “with good motives and for justifiable ends.” More typically, courts required defendants, including members of the press, to prove the truth of libelous political statements. And, as with fair comment for opinions, the conditional privilege for libelous political falsehoods could be defeated by evidence of “malice,” generally defined as ill will or hostility toward the persons defamed. Any wider privilege, it was argued, would threaten not only individual reputations but could discourage good people from entering or remaining in public life. Strict protection for the reputations of the “best” people, in short, was said to safeguard the public’s interest as well.

Although doctrinal discussions invariably involved consideration of such general constitutional and public values, the actual impact of libel laws, over the course of American history, remains difficult to assess. Because of the time and expense that litigation required, wealthier citizens and political figures comprised the vast majority of plaintiffs. In spite of the pro‐plaintiff tilt in libel law, even these people complained that the popular political culture encouraged more vituperation than black‐letter law technically allowed. Except at specific times and in certain places, jurors generally seemed more sympathetic to defendants, especially newspaper publishers, than to plaintiffs. Still, publishing interests constantly complained about overly strict libel laws, arguing that even the occasional lawsuit (and rare criminal prosecution) dampened the critical tone of public discussion.

Despite numerous complaints, efforts to make dramatic changes gained little headway. Legal elites did tighten libel doctrines during the late nineteenth and early twentieth centuries, while simultaneously fighting back, in most states, efforts to adopt the minority rule on libelous political falsehoods. But stricter doctrines generally failed to make libel a commonly invoked restraint. In 1947, after studying the everyday operation of libel laws, the renowned libertarian Zechariah Chafee, Jr. reported that, despite looking “bad on paper,” libel laws worked fairly well in practice. For more than 150 years, the Supreme Court took a similar position. The law of libel, according to decisions such as Chaplinsky v. New Hampshire (1942) raised few, if any, First Amendment concerns.

In New York Times Co. v. Sullivan, however, the Supreme Court constitutionalized libel law. Arising out of the civil rights struggle and involving a $500,000 judgment under Alabama’s common‐law rules, Sullivan clearly showed how a group, southern segregationists, could use libel laws to stifle political expression. In addition, by the early 1960s, a tide of large libel judgments, much higher than any handed down by juries in the past, seemed at hand. According to critics of libel law, the threat of costly litigation and expensive judgments might encourage journalists to avoid controversial issues, self‐censor their publications, and thereby “chill” public discourse. Some libertarians, including Justices Hugo L. Black and William O. Douglas, consequently urged an end to actions by political figures and, eventually, to all libel suits involving subjects of general public interest.

The majority of the Supreme Court, led by Justice William Brennan, mounted a less drastic, though still sweeping, revision of libel law. Sullivan and subsequent decisions brought a number of major changes. First, the Court held that First Amendment requirements overrode the majority rule of strict liability for libelous political false hoods. When sued by politicians, libel defendants enjoyed a new constitutional privilege that could be overcome only by evidence of actual malice. Second, this new malice standard differed from the old common law one of ill will. Malice now meant publication with knowledge of falsehood or in “reckless disregard” of a statement’s veracity. Third, Sullivan not only placed the burden of proving constitutional malice on plaintiffs but required them to offer “clear and convincing” evidence on the issue. Moreover, in order to assure adherence to Sullivan’s standards, the Supreme Court claimed power to review all aspects of any political libel case, including its factual basis, on the theory that judges, rather than jurors, could best safeguard free‐speech values.

Post‐Sullivan decisions—though handed down by a Court staffed with new, presumably “conservative” justices—introduced other innovations. After briefly applying the actual malice standard to any libel suit involving a subject of general public interest (Rosenbloom v. Metromedia, 1971), the Court took the more complex step of linking levels of constitutional protection to the status of different kinds of libel plaintiffs. Thus, after *Gertz v. Welch (1974), public officials and “public figures,” at least in libel suits against the media, had to meet Sullivan’s standards. But if individual states thought appropriate, purely private plaintiffs could recover under less stringent doctrines, as long as they showed some degree of fault, such as negligence, by libel defendants. In addition, the Court held that statements of pure “opinion,” as opposed to libelous misstatements of “fact,” were now absolutely privileged.

The resultant complexity pleased few people. Still confronting what they considered a flood of libel suits—especially by prominent figures from politics and mass culture—media executives helped to create the Libel Defense Resource Center as a clearinghouse for monitoring lawsuits and legislative changes. Although they lacked such organization, critics of the media countered with claims that libel law reforms were leaving public officials and ordinary citizens at the mercy of irresponsible journalism.

Meanwhile, commentary on the new doctrines, and proposals for further simplifying them, became a cottage industry. According to one tally, between 1973 and 1983 there were 718 reported lawsuits and nearly 450 law review articles about libel law. For their part, several academic studies suggested that the post‐Sullivan years had not seen any dramatic reduction—and, perhaps, a slight increase—in libel suits; that defendants ultimately prevailed in the vast majority of suits; but that litigation costs and the amount of damages awarded in successful suits were both continuing to soar. Although this vast literature generally concluded that constitutionalization had helped protect First Amendment values, neither legal scholars nor directly interested parties could agree on how best to clarify the libel law muddle.

See also Speech and the Press.

Randall Bezanson , Gilbert Cranberg , and John Soloski , Libel Law and the Press: Myth and Reality (1987). Norman L. Rosenberg , Protecting the Best Men: An Interpretive History of the Law of Libel (1986). Rodney Smolla , Suing the Press for Libel: The Media & Power (1986)
© Oxford University Press 1992, 2005
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17 Responses to “”


  1. 1 mekyam
    December 30, 2009 at 1:50 am

    spot on, tin lim. 😀

    self-respecting malaysians should only have three words to SKS & SHA’s grandstanding: Barry Wain, WHO?

  2. 2 jebatmustdie
    December 30, 2009 at 3:41 pm

    Salam Pn. Halimah,

    Would like to link this good article of yours in my website if you don’t mind.

    May you and family have a great New Year ahead! 🙂

    Sincerely,

    JMD-

  3. 3 nini
    December 30, 2009 at 6:53 pm

    Dear JMD

    You are most welcome to post this piece on your website. I’m copying the comments of my Facebook friends as well!

  4. 4 nini
    December 30, 2009 at 6:58 pm

    HERE ARE SOME COMMENTS ON MY FB NOTES:

    Jamilah Ibrahim Cogently argued, Lady Ha.

    Shaik Rizal well said ninitalk! but I don’t see how we should waste even a single cent on that trash Barry Swine

    Farida Shah what you need to write , perhaps in your next letter is typically Malaysia too is authorities, be it politicians and/or oppositions issuing statements and wanting to take action without thorough deliberation of the subject. hope its gets published

    Kassim Ahmad i think (so do you and the pm) a rci is a public waste of money and energy. it’s nothing but a politician’s and lawyer’s frolic to draw the attention of the public from the real issues at hand. tdm should go ahead and sue wain & co instead of asking for a rci. why should he has to prove anything? the onus is on them.

    Halimah Mohd Said

    Dear all

    I didn’t want to sound prejudiced but just because a Mat Salleh writes a book, some people including the Singapore think tank go “ga ga & gu gu”.

    I think Tun M was just testing the waters to see how far Malaysians, especially the Opposition, will go with this royal commission craze. Instead of thinking for themselves they’d rather pass on the responsibilty and give the self-proclaimed “legal eagles” more opportunities to twist and turn the law at their expense. … See More

    Then these same people will turn around and say the RC is biased or manned by people who are biased. I agree it’s a ploy and a strategy to use an outside “think tank” to show that the criticism is internationally sound.

    I agree – Tun M should not entertain these attempts to discredit him and should not have encouraged them to investigate Pak Lah’s regime as well.

    Then we might as well open our doors wide and investigate how Tunku Abdul Rahman, Tun Abdul Razak, Tun Hussein Onn and all the Menteri Besar and their state governments spent the rakyat’s money.

    MY GOODNESS! The skeletons will really come tumbling out of the cupboards!

    Bala Pillai Hi Halimah, everything including your passion is coherent until “we shouldn’t do a commission of inquiry lest we find too many faults”. Sounds too close to “lots of wrongs makes a right”.

    Yang Farina Abdul Aziz Well said Halimah. Keep up the good work!

    Halimah Mohd Said

    Where did I imply or say that Bala?

    If you look at the royal commissions of inquiry done in other commonwealth countries most of them investigate substantive issues that bring benefits rather than destruction to the nation e.g bilingualism or multiculturalism to mention two.

    In Malaysia it seems as though we are more personal!

  5. 5 ninitalk
    December 30, 2009 at 7:08 pm

    HAPPY NEW YEAR TO YOU TOO JMD!

  6. 6 ninitalk
    December 30, 2009 at 10:09 pm

    Shaik Daud I agree that a RCI is a waste of public money let Mahathir sue the writer for libel and in this respect the GOVT. shoult NOT ban the book.

    Din Merican Some people are above the law. Whether it is written by a Mat Salleh or a Malaysian is not the issue here. Tun Mahathir and other leaders must answer for what has happened to our revenues and resources. RCI may not be necessary, but accountability for decisions made remains.

    Let us acknowledge that corruption is rampant and abuses of power too … See Morefrequent.The judiciary is in a mess. Why can’t Najib and others fix that. Why aren’t politicians behind PKFZ hauled up?. Why no proper explanation on the two fighter jet engines, etc.

    The whole system is rotten to the core. People who we put in power have damaged the reputation of our country and now no one wants to invest here. Yet they are not answerable.

    Shaik Daud Well said Din

  7. 7 ninitalk
    December 30, 2009 at 11:05 pm

    Halimah Mohd Said

    Din and Daud – if you read my reasoning in this posting carefully you will see that I’m not at all arguing against accountability. If you have been following my writings you will know how much I abhore corruption be it political, public, private or personal.

    By all means use the proper channels to investigate and report. People like you who have been part of the system know best where it leaks and stinks! Whistleblow, line up the witnesses, furnish documents and evidence and proof.
    Get the culprits! Get the skeletons out of the cupboards!

    I’m talking about the royal commission of inquiry here! Why diminish the stature and importance of our national institution by making it accountable to Barry Wain!

  8. 8 ninitalk
    December 30, 2009 at 11:28 pm

    Din Merican

    Halimah,

    Barry Wain is just a researcher….. Tun Mahathir made a big issue about the book and our Malaysian customs blocked its entry into our bookstores. Overnight Barry who knows me personally became a notoriety.

    The former PM wants to clear his name with a RCI, but he suggested that Badawi should be investigated as well.That is cynical. Najib came in the nick of time to prevent further embarassment to UMNO and his government.

    I am glad that you agree with me on accountability. There should be exceptions. MACC does not understand this or refuses to. Selective investigations are conducted; there is now case in our court where a lawyer is being charged for not disclosing confidential client information.

    Halimah Mohd Said

    Then you Din should get hold of Barry Wain’s data, documentation and references and lodge a police report before the year ends.

  9. 9 mekyam
    December 31, 2009 at 1:06 am

    tin lim,

    re din merican: “Tun Mahathir made a big issue about the book… ”

    what a disingenuous remark, don’t you think?

    [i suspect this remark was already in the script the tun’s response was probably one of those his detractors expected when they started this gambit.]

    so transparent!

    but just for the sake of arguments…

    how is responding in the only way possible to the intended mischief of din merican’s fellow “divert public attention from anwar ibrahim’s pending court case” buddies making a big issue about the book?

    anyone with half a mind knows that THE ISSUE WAS ALREADY MADE by the likes of KIT SIANG and SYED HUSIN when they decided to give credence to this little-known writer.

    making it contigent to suing wain and them, should they not be able to come up with proofs to satisfy the IRC kit siang suggested, was just a sound manoeuvre of tun mahathir to protect his goodname.

    in the same circumstance, what would din merican or lim kit siang or syed husin or anwar ibrahim have done (if they’d ever reach the same pinnacle of political achievement as TDM did, that is — a pinnacle that the likes of them so burn with envy and resentment)? take it lying down and wait for blows from their other scripted directions? sure, we are all born yesterday!

    [i used to have such high regards of din merican when he was writing through dr bakri musa’s blog. it is sad that such an intelligent man allows himself to be used by a character like anwar ibrahim. i guess common animus, whatever the reasons, can make friends of the unlikeliest people.]

  10. 10 glassman
    December 31, 2009 at 11:46 pm

    can i put this in my blog too , please? http://www.glassmansays.blogspot.com
    but in my opinion, we should just fotostat barry’s book and not let him earn anything from us.

  11. 11 ninitalk
    January 1, 2010 at 7:28 am

    Sure glassmansays!
    What a brilliant idea but the copyrights laws might be pounced on us!

  12. 12 ninitalk
    January 1, 2010 at 7:37 am

    mek yam

    People have their reasons for grudging the government – some real, some perceived, many justified!

    But it becomes worse when they manipulate and twist things for their own political agenda. If you read LKS’s comments on his blog you can see how unreasonable his reasoning is! In the end it becomes a battle of illogical logic – assumptions and premises become conclusions and findings!

    Jealousy is behind much vindictiveness!

  13. January 3, 2010 at 8:33 pm

    Dear Pn. Halimah,
    Definitely yours is a well thought of article and if a person is on the ‘surface’ neutral to the personality of Tun Dr. Mahathir and that of the Opposition to Tun Dr. Mahathir, which is not confined to supporters of Lim Kit Siang, but cuts across a whole gamut, one would definitely agree with your point of view.

    And it was a good touch to show pictures of yourself with both the protagonists in this piece.

    However, I think its quite rare to find a person who is ‘neutral’ to Tun Dr. Mahathir. Many have a strong opinion, either pro or against because of the mark he has left in the country.

    For me, whilst I was working in Malaysia, I considered myself as one of the biggest critics of Dr. Mahathir. Every new piece of information I gleamed through my continuing education in the field of finance and economics pointed to an eventual ruin of the country due to anti competitive, inflationary measures Dr. Mahathir had introduced. The worst to me was the destruction of integrity. According to my perception, Dr. Mahathir’s influence has reduced our common morality, and the average picture of the Malaysian in my opinion has grown worse because of his rule.

    This destructive policy was called ‘Ketuanan Melayu.’

    However, after working in Singapore and in response to a blog posting Sial Menerima Pendatang, I decided that it will be the last mauling I get in trying to explain why Ketuanan Melayu will be the cancer that will destroy the Malays, I decided to divorce myself of the long term situation of the country and what will happen.

    My conclusion is that to most Malays, Tun Dr. Mahathir is the person who reminded Malays that they were the Tuans of Malaysia. If it cost RM 100 billion to institute that, well its money well invested. To the non Malays who hold a strong opinion against Dr. Mahathir, even if he had indeed wasted RM 1 billion, it will be a hanging offence, let alone RM 100 billion.

    So really even including an appendix of papers and contracts is still subjective. One may interpret it as a necessary investment, others as a waste. The monetary figure is subject to a political, and in most cases, a race based intepretation because the politics divides itself quite nicely by race.

    As to me, Tun Dr. Mahathir gave Malaysia and the people of Malaysia what they deserve.He belted out the hits after hits for 22 years, and they lapped it up.

    However, the bill and the benefits is now coming in drips and draps. It has yet to be fully paid nor the benefits fully enjoyed

    But it will.

    And it won’t take long, thats my hunch.

  14. 14 ninitalk
    January 4, 2010 at 11:01 am

    nukilanpendatang – I’m not at all superficially “neutral” to Tun Mahathir!

    I happen to believe he developed Malaysia and Malaysians in a big way under his leadership. I believe he had and still has the greater interest of the people at heart and he has led the country to the best of his ability in challenging times and in a particular context of the country’s politics and development.

    To use a cliche – times change, people change with time and new needs, politics changes with volatile local and international happenings over the years and people’s political affiliations change! This we have to accept as an aspect of our so so human and fickle existence.

    But what riles me is when people are judged in retrospective against current values and developments. Tunku Abdul Rahman’s philosophy and style of leadership was relevant for his era as was Tun Abdul Razak’s. Tun Hussein Onn was a leader of outstanding integrity yet people judge him as being weak in terms of the nation’s physical development. Each of the Prime Ministers including Tun Abdullah Ahmad Badawi had personal character and personality strengths and failings as do Tun Mahathir and now Dato’ Seri Najib.

    But to heap the blame of corruption and abuse of the nation’s resources to the tune of RM 100 billion on Tun Mahathir is downright scandalous when Malaysia is enjoying the pride of the Twin Towers and PutraJaya and the other infrastructural developments.

    Of course now that the whole world and the country is facing an economic downturn these lavish developments seem wasteful and uneconomic. Why wasn’t there a public outcry before? In fact everybody was crying out MALAYSIA BOLEH because Tun M instilled in them this belief!

    To link “ketuanan Melayu” to these developments strikes me as an attempt to use syllogism or illogical logic which takes one from JOHN HAS A BLACK DOG to JOHN IS A BLACK DOG. How dangerous this kind of thinking and analysis is!

    I wrote a critical analysis of Ketuanan Melayu which was published in Utusan Malaysia in 2008 where I blamed the country’s politicians for misusing and misinterpreting a term which developed out of the nation’s history of colonial rule where the Malays and some of the other ethnic groups were regarded as the indigenous peoples and earliest settlers. They owned their land or were the “tuan tanah”. When the British came the word “Tuan” was used as a term of homage. The Chinese and Indians settled in large numbers during British rule. I suggested that “ketuanan” as it is used to argue for Malay political dominance and supremacy should not be used as it is emotionally charged.

    Keep the comments coming nukilanpendatang! It’s healthy to interact freely on the issues which concern all caring Malaysians!

  15. 15 ninitalk
    January 4, 2010 at 11:07 am

    James Selvaraj Sundram I think that you are right in saying that Malaysians tend to be victims of knee jerk reactions. A RC is a waste of time and resources and at the end of the day nothing really comes out of it. I have not read the book by Barry Wain and I do not want to waste my time reading it as it will only benefit the authour and I have better things to do with … See Moremy time. I agree with you that if there is evidence and documents pointing to Tun’s Mahathir’s guilt of corruption, the matter must be reported to the relevant authourities for investigation and action.

  16. 16 amanshahkhalid
    January 9, 2010 at 6:42 pm

    I have not read the book as yet and maybe, I may not get the chance to do so as rumours are rampant that the book will be ban by the Government.Hopefully, I get a chance to read one if somebody is able to ‘smuggle’ in a copy. By the way to call a Royal Commission to sit just because of the book written by Barry Wain should not be encouraged. Tun Mahathir should just sue the writer of the book and let the legal tussel be between the two of them…..why waste public money. Royal Commissions as we have seen in Malaysia get half the job done but the Government comes out with excuses and verdicts that sound like broken records….insufficient evidence of illegality…case closed! I sometimes feel Malaysians are taken for a joy ride by the Government when the PM proudly informed to the press that a Royal Commission will conduct a thorough investigation on the issues. In the V.K. Lingam’s case the Commissioners found sufficient evidence of malpractices and recommended the case be brought to the civil court. They had done a good job but sadly the Attorney General Chambers rejected the case as there was insufficient evidence! So folks…forget the Royal Commission…some people are just above the law.


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