The charge against Mat Sabu

Mat Sabu is charged today for criminal defamation. I have not read the exact charge. However from various reports, apparently he is charged for criminally defaming the police, soldiers or their families.

I don’t want to say much about the charge as I don’t want to be hauled up for making comments while the case is going on and thereby breaching the sub-judice rule (actually I think sub-judice rule is not even applicable in Malaysia, but that’s another issue).

We now see it fit to even abolish the ISA and Emergency Ordinance for the sake of freedom and liberties. We now see it fit to repeal the Printing Presses and Publication Act to restore freedom of speech to the people. However we cannot even treat opposing views and different interpretation of historical events or facts with respect and civility.

On this score, I am against all the police reports against Mat Sabu as well as against Professor Zainal Kling for their respective statements and opinions. A mature society and democracy should be able to deal with differing opinions calmly and of course, intellectually.

There are various other people who should be charged for sedition. I don’t have to list them out here. But they are not so charged. I wonder what has happened to the investigation on the Christian conspiracy and why it has taken such a long time to complete.

I am not in support of what Mat Sabu has said. I have to make this clear. In fact I am not in love with PAS either. This post is simply about the law.

I know a thing or two about the law of defamation, having done about 10 defamation cases involving some prominent personalities and establishments in my career. This is all I have to say about defamation:

i) you cannot defame the dead under our law. The rationale is the dead cannot have a reputation to protect. Nor can the estate of the dead have reputation. (while this position is correct in civil defamation, a learned friend of mine has pointed out that under section 499 of the Penal Code, a deceased person may be indeed be defamed , if "the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives." The AG would therefore have to prove that Mat Sabu had intended his statement to be hurtful of the deceased person's family or near relatives.

ii) for somebody to be guilty of defaming a person, he/she must have uttered an untrue statement which essentially lower the reputation of that person or put that person in public odium. Now, if Mat Sabu said that Mat Indera was a freedom fighter in the Bukit Kepong event, the AG would have to show how that statement had lowered the reputation of the police/soldiers or their family or put them in public odium.

iii) there must be a specific party or person or group of persons being defamed. Meaning, the statement uttered must refer to, or must be capable to be understood as referring to a specific person or group of persons. For example, if I say Ahmad is a rapist, not all Ahmad can sue me if my statement is untrue. My statement must refer to a certain Ahmad or must be capable of being interpreted to refer to a certain and specific Ahmad. Otherwise all the Ahmads in the world would be allowed to sue me for defamation. So, in this respect, the AG must be able to prove that Mat Sabu’s statement had indeed referred to or was capable to be interpreted as referring to a specific person or group of persons.

I am sure the AG and his people have given great and in-depth thoughts and consideration to all legal factors before proffering the charge against Mat Sabu.

I wish the AG good luck in this case.