By P Ramakrishnan
The government does not want to hear certain criticisms and therefore it chooses to deny Malaysians their right to hold those views.
In granting contempt proceedings against Malaysiakini and its editor-in-chief Steven Gan over readers’ comments on the judiciary, the judiciary appears to have delivered a lethal blow against our inalienable right to freedom of expression. It is a blow to our humanity as well, as it deprives us of our right to be honest in our opinion.
Chinese Nobel Peace Prize laureate Liu Xiaobo has put it succinctly when he stated that “Freedom of expression is the foundation of human rights, the source of humanity and the mother of truth.”
As if it wasn’t bad enough that Malaysiakini and Gan had been cited for contempt, they appear to be also denied the judicial opportunity to appeal by the case being directed straightaway to the Federal Court. These proceedings, in all fairness, should have been initiated at the High Court, giving them the fairness to the normal two-tier appeal to the Court of Appeal first and failing which the Federal Court later. As it is, the two-tier appeal system has been slammed shut in their face in all unfairness!
To begin with, let’s be very clear. Malaysiakini and Gan did not commit any offence. They are not personally guilty of violating any law. Hundreds of thousands of Malaysians read their articles published in their network and hundreds of readers post their comments amounting to thousands of comments. It is virtually impossible to keep track of all the thousands of comments posted by their readers.
So they chose a sensible way to address this problem by alerting their readers to this touchy issue by carrying a warning as shown below:
TERMS & CONDITIONS
“Foul language, profanity, vulgarity, slanderous, personal attack, threatening, sexually-orientated comments or the use of any method of communication that may violate any law or create needless unpleasantness will not be tolerated. Anti-social behaviour such as ‘spamming’ and ‘trolling’ will be suspended. Violators run the risk of also being blocked permanently.”
They went further by seeking the cooperation of their readers to alert them when any violation of the above conditions takes place as can be seen below:
“Please use the report feature that is available below each comment to flag offending comments for our moderators to take action. Do not take matters in your own hands to avoid unpleasant and unnecessary exchanges that may result in your own suspension or ban.”
It is very obvious that they have taken all the precautions humanly necessary and possible to ensure that their conditions are fully observed. They have acted very responsibly in keeping with the ethics of journalism. They must be complimented for this. In short, they have done their best and it is trite law that no one can be faulted for having this done.
As such, the government should, if need be, go after those whose views it doesn’t approve of – not against Steven Gan and Malaysiakini. They have taken the precaution and they should be applauded.
In the contempt proceedings, five comments by readers were cited by the Attorney-General as justification for resorting to this Federal Court action. What is clear by this is that by and large the vast majority of their subscribers and readers have not violated the conditions imposed. Like in any situation, we encounter a tiny minority that falls foul of the rules. If need be, it is these recalcitrants who must be pulled up for any action to be taken for their misconduct – not Malaysiakini or Gan.
What we have here is that Malaysiakini and Gan did not publish these comments and do not share these sentiments but they are being taken to task and facing punitive committal proceedings for acts that they are not accountable for. This is most unfair.
Malaysiakini can proudly boast of a 20-year unblemished history. Their readers have been highly critical and very vocal in expressing themselves. The fact that there has been no simultaneous and spontaneous outbreak of action with people taking the law into their hands strongly suggests that Malaysians are responsible citizens. There has never – ever – been any disturbance or untoward incidents as a result of these very critical comments posted by readers. In all these years, they have never been cited for contempt. Why, suddenly, this intolerance?
In truth, the judiciary is no longer as pristine as it was once upon a time in the past. Over the years, its image, reputation and prestige have eroded considerably. Many seem to view the judiciary in a negative light. If we care to conduct a survey or a referendum among Malaysians, this truth will emerge very glaringly – and alarmingly too!.
The same sentiments as found in the comments are shared and uttered in small circles all over the country in coffee shops and gatherings. This cannot be silenced.
This will never be known to the government. But what these five readers have posted should be an eye-opener for the government. This is one way for the government to know what the ground-level feelings are so that action can be taken to address their grievances. These bottom-up sentiments are feedbacks for the government and could help it address this negative perception and provide explanations to counter these critical comments. In this sense, any enlightened government should welcome these critical comments; otherwise, it will remain ignorant of the feelings of the people.
The only difference is that opinions expressed by small circles of gatherings all over the country do not get publicized reaching a wider circle of Malaysians whereas what is posted reaches out to the far corners of the country – is this what the Perikatan Nasional (PN) government fears? Does PN not want Malaysians to be influenced by negative views of the government?
We hope that the court will take into account whether the laws restricting freedom of speech infringe on the right of Malaysians to voice out their views without any malice. The judiciary must be seen to be on the side of justice, not just the law – and not seen as protecting the interests of the Executive.
There is truth in George Orwell’s statement, “If liberty means anything at all, it means the right to tell people what they do not want to hear.”
This maybe the problem that we are confronted with. The government does not want to hear certain criticisms and therefore it chooses to deny Malaysians their right to hold those views. It fails to understand that everyone is entitled to express an opinion about the things they read. They have every right to express their views online.
A view posing as an alternative to the above may well be this. Despite the sound and fury hat has come out so far, we are still hopeful that it may well turn out that the unprecedented direct Federal Court trial for Malaysiakini and Gan may well see an ingenious initiative by the Attorney-General and by some senior Federal Court Judges to pronounce solemn judiciary policy on the future management of such unfortunate situations that Malaysiakini and Gan have found themselves in.
Whatever the outcome, we pray that the court would take cognizance of the peoples’ inalienable and democratic right to criticize whenever it is necessary. This right, the Federal Court must uphold in line with the solemn oath of our Judges to uphold the Constitution.
This right is so eloquently expressed by the former President of the Philippines, Corazon Aquino, “Freedom of expression – in particular, freedom of the Press – guarantees popular participation in the decisions and actions of government, and popular participation is the essence of our democracy.
Indeed, if I may add, popular participation enhances the legitimacy of any government to rule any country. On another note, the Attorney-General and the Federal Court must always be ever mindful that the decision on the case may well set the tone for the media’s continued ability to provide feedback for the administration of this country.
(The views expressed are those of the contributor and do not necessarily reflect the views of Rebuilding Malaysia.)