The defamation charge laid against PAS deputy president Mohamad Sabu is under criminal law and not civil,so defaming the dead is possible, particularly in aspects considered detrimental to society.
Hanif Khatri Abdulla, a practising lawyer of over 20 years, said that even though the police officers in the attack are now dead, unlike civil law, it is still possible to lay defamation charges under criminal law.
Mohamad (left), or more popularly known as Mat Sabu, had in a speech on Aug 21 praised Mohammed Indera as a freedom fighter, the man who led insurgents in an attack of the Bukit Kepong police station in 1950.
Mat Sabu justified his statement based on the fact that the police then were serving the British crown , but opponents have been offended by the comments, claiming that it casts disrespect on the defenders of Bukit Kepong.
Hanif said: "In a civil measure, the individual defamed can seek compensation but in a criminal measure, if society believes that when no action is taken it can cause irrepairable chaos, it is then up to the attorney-general to decide if the statement is in the interest of society."
Hanif has served on the Bar Council criminal law committee and represented Bayan Baru MP Zahrain Mohd Hashim in a defamation case against Penang Chief Minister Lim Guan Eng,
He added that it is possible to defame a group of people, so long as they are identifiable.
"I can issue a statement defaming 21 people, but their names must be identifiable, it is the same in criminal defamation, the (Bukit Kepong) police officers must be identified. They may not have had identity cards at that time, but it's a matter of doing research," he said.
Hanif also pointed out another difference between civil and criminal defamation where the former requires the defendant to pay damages to the aggrieved party and issue apologies while the latter prescribes a jail term.
Concurring with him, former Bar Council criminal law committee deputy chairperson Baljit Singh Sidhu said the police can act on the complaints of the deceased's kin.
"It is a chargeable offence because their grandchildren can take action as they are the aggrieved party," he said when contacted.
'It's a compoundable offense'
However, he said the charge against Mat Sabu, which is under Section 500 of the Penal Code, should be jointly read with Section 260 of the Criminal Procedure Code (CPC).
"The good news is that it is a compoundable offense with the consent of the court, if Mat Sabu wants to run (for office)," he said.
Section 260 of the CPC, according to Baljit, allows the accused to pay a compound to the aggrieved party which is similar to damages paid in civil cases with the court's permission.
This, he said, was important as even though Mat Sabu is not a standing MP or state assemblyperson, a fine of more than RM2,000 or a jail term of more than a year would disqualify him from standing in the coming general election.
When contacted via email, Bar Council president Lim Chee Wee(left) said
the move to charge Mat Sabu contravenes freedom of speech, adding that the latter can fall back on "fair comment" as his defense.
"Section 499 (of the Penal Code) provides for ten exceptions (to defamation)... the second and third are essentially the closest to Mat Sabu's scenario, they are essentially defences of fair comment," he said.
The exception states that it is not defamation if someone were to express an opinion in good faith on a person's conduct and character specific to a public question.
Mat Sabu was charged yesterday at the Butterworth Session Court with criminally defaming police officers and their families who had defended the Bukit Kepong police station against communist guerillas.
He also faced an alternative charge under the same section for crminally defaming three policemen, Abu Bakar Daud, Jaafar Hassan, Yusoff Rono - all deceased - and their families in his comments.
Hanif Khatri Abdulla, a practising lawyer of over 20 years, said that even though the police officers in the attack are now dead, unlike civil law, it is still possible to lay defamation charges under criminal law.
Mohamad (left), or more popularly known as Mat Sabu, had in a speech on Aug 21 praised Mohammed Indera as a freedom fighter, the man who led insurgents in an attack of the Bukit Kepong police station in 1950.Mat Sabu justified his statement based on the fact that the police then were serving the British crown , but opponents have been offended by the comments, claiming that it casts disrespect on the defenders of Bukit Kepong.
Hanif said: "In a civil measure, the individual defamed can seek compensation but in a criminal measure, if society believes that when no action is taken it can cause irrepairable chaos, it is then up to the attorney-general to decide if the statement is in the interest of society."
Hanif has served on the Bar Council criminal law committee and represented Bayan Baru MP Zahrain Mohd Hashim in a defamation case against Penang Chief Minister Lim Guan Eng,
He added that it is possible to defame a group of people, so long as they are identifiable.
"I can issue a statement defaming 21 people, but their names must be identifiable, it is the same in criminal defamation, the (Bukit Kepong) police officers must be identified. They may not have had identity cards at that time, but it's a matter of doing research," he said.
Hanif also pointed out another difference between civil and criminal defamation where the former requires the defendant to pay damages to the aggrieved party and issue apologies while the latter prescribes a jail term.
Concurring with him, former Bar Council criminal law committee deputy chairperson Baljit Singh Sidhu said the police can act on the complaints of the deceased's kin.
"It is a chargeable offence because their grandchildren can take action as they are the aggrieved party," he said when contacted.
'It's a compoundable offense'
However, he said the charge against Mat Sabu, which is under Section 500 of the Penal Code, should be jointly read with Section 260 of the Criminal Procedure Code (CPC).
"The good news is that it is a compoundable offense with the consent of the court, if Mat Sabu wants to run (for office)," he said.
Section 260 of the CPC, according to Baljit, allows the accused to pay a compound to the aggrieved party which is similar to damages paid in civil cases with the court's permission.
This, he said, was important as even though Mat Sabu is not a standing MP or state assemblyperson, a fine of more than RM2,000 or a jail term of more than a year would disqualify him from standing in the coming general election.
When contacted via email, Bar Council president Lim Chee Wee(left) said
the move to charge Mat Sabu contravenes freedom of speech, adding that the latter can fall back on "fair comment" as his defense."Section 499 (of the Penal Code) provides for ten exceptions (to defamation)... the second and third are essentially the closest to Mat Sabu's scenario, they are essentially defences of fair comment," he said.
The exception states that it is not defamation if someone were to express an opinion in good faith on a person's conduct and character specific to a public question.
Mat Sabu was charged yesterday at the Butterworth Session Court with criminally defaming police officers and their families who had defended the Bukit Kepong police station against communist guerillas.
He also faced an alternative charge under the same section for crminally defaming three policemen, Abu Bakar Daud, Jaafar Hassan, Yusoff Rono - all deceased - and their families in his comments.
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