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3rd October 1999
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inside the glass house:

When UN told where it stands

By thalif deen at the united nations
The message to the United Nations was unequivocally clear: "Keep your hands off our domestic problems."

The strong political sentiments against "UN humanitarian intervention" came not only from Sri Lanka but also from India, China and the 54-member Organisation of African Unity (OAU) representing an entire continent.

Speaking from his hotel room in New York last week, Foreign Minister Lakshman Kadirgamar criticised UN officials for pontificating on the domestic political problems of Sri Lanka. 

Since the primary mandate of most UN agencies is social and economic development — covering food, children, environment, population and health care — the foreign minister said the UN would be best advised to "stick to malaria and mosquitoes" — "and leave us to resolve our own political problems."

As he lambasted UN officials for shooting their mouths off in public, Mr. Kadirgamar described a former UN official in Colombo as "a pompous ass" who was told in no uncertain terms where his authority began — and ended.

At a political level, Sri Lanka has kept the UN at a comfortable distance, although the government is currently one of the major Third World contributors to the UN Development Programme (UNDP) providing about $1 million annually— even while the country receives development assistance from the UN agency. 

Sri Lanka is also one of the few Asian countries which has not formally invited Secretary-General Kofi Annan to visit the country while Pakistani and Bangladeshi officials are waiting with welcome mats.

At a more official level, Mr. Kadirgamar has also dispensed with the traditional gesture of meeting with the Secretary-General for photo-ops everytime he visits the UN to address the annual sessions of the General Assembly.

Speaking before the UN Correspondents' Association last week, Mr. Kadirgamar said the UN really had no mediating role — or for that matter any role at all — in resolving the civil strife in Sri Lanka.

Mr. Kadirgamar's comments, which received wide publicity worldwide, were an extension of the strong sentiments expressed by China, India and Algeria on the issue of UN intervention, although the foreign minister left the door open for such intervention in the event of mass genocide or ethnic cleansing as in Rwanda and Kosovo.

Addressing the General Assembly last week, Chinese Foreign Minister Tang Jiaxuan set the tone of the debate by brushing aside repeated arguments that human rights should take precedence over national sovereignty. 

"When the sovereignty of a country is put in jeopardy, its human rights can hardly be protected effectively," he said. 

Sovereign equality, mutual respect for state sovereignty and non-interference in each other's internal affairs are the basic principles governing international relations today, Tang said. 

China's strong stand against ''humanitarian intervention'' was prompted primarily by fears of a Kosovo-type intervention in Tibet — whose separatist movement has strong support in the United States. 

The issue of human rights, in essence, was the internal affair of a country and should be addressed mainly by the government of that country through its own efforts, Tang stressed. 

Indian Foreign Minister Jaswant Singh said it would be an error to assume that the days of state sovereignty were over. 

"The United Nations was not conceived as a super State, it will not ever become so, principally, because there is no viable substitute to the sovereign state," he added. 

India has barred any form of UN intervention in the disputed territory of Kashmir, even refusing to permit senior UN officials, including Mr. Annan, to raise the issue at a diplomatic level. 

A proposed visit by Mr. Annan to South Asia has been held up because India has repeatedly said that the time is not ''appropriate" for such a visit. In diplomatic jargon, this means Annan is not welcome in New Delhi.

Speaking on behalf of the OAU, Algerian President Abdelaziz Bouteflika, a former president of the General Assembly, said he did not deny the right of Western states to denounce breaches of human rights violations. Nor did he deny the UN's right and duty to help suffering humanity.

"But we remain extremely sensitive to any undermining of our sovereignty not only because sovereignty is our final defence against the rule of an unequal world, but also because we are not taking part in the decision-making process by the Security Council nor in the monitoring of their implementation," he added.

Sued into silence 

A surfeit of defamation cases in Malaysian courts threatens free expression 

By Raja Aziz Addruse 
In some countries journalists have to keep their heads down to avoid bullets. In Malaysia the dangers are different, but just as real. Increasingly, what would be considered a normal exercise of their craft in other democracies can land reporters with a multimillion dollar defamation suit or — as in the case of Murray Hiebert of the Far Eastern Economic Review — in jail. 

A Canadian national, Hiebert wrote an article in January 1997 about a legal dispute involving the son of a Court of Appeal judge. The reporter was charged with contempt of court and deprived of his passport as a condition of bail. 

Some two years later, on Sept. 11, the Court of Appeal upheld his conviction, while reducing his sentence from three months to six weeks. He is appealing to the Federal Court but has elected to serve his term so he can get his passport back. Hiebert is now in Kuala Lumpur's Sungai Buloh prison because of something he wrote. 

Malaysia's judiciary finds itself, once again, under close international scrutiny. Hiebert is the first journalist to be imprisoned in Malaysia in the line of duty. Recent advances in information technology mean that it is no longer only law professors, lawyers and judges who consider whether an utterance is offensive. 

Thanks to the communications revolution, the general public can now examine allegedly scandalous statements, in their full context, and reach its own informed judgment on what they mean and whether their author should be punished. Although Malaysia no longer uses a jury system (findings of fact are made by judges), ordinary members of the public are still drawing their own conclusions. 

And the public attaches importance to the rights of freedom of speech and expression. The judgment against Hiebert has much in common with a string of other recent decisions, including the cases of Lim Guan Eng (an opposition MP jailed for 18 months for "maliciously publishing" a pamphlet), Param Cumaraswamy (a United Nations special rapporteur on the independence of judges and lawyers who has been denied immunity from legal process in relation to a quotation published in a British legal periodical) and M.G.G. Pillai (in which an individual journalist was ordered to pay $800,000 for making defamatory statements against a businessman). 

Defamation suits against journalists are becoming a common feature of the Malaysian scene. Damages sought in the cases currently pending run into the tens of millions of dollars. The danger is that, in such a climate of great apprehension and fear, the media cannot fulfill their duty to critically report on events. 

Of course, the right to freedom of speech is not absolute. There must be some restrictions to protect citizens and the judiciary from scurrilous attacks. But at the same time, the courts must weigh the two competing rights carefully, to ensure that the right to free speech is not obliterated.

The courts' increasingly frequent and wide use of the law of contempt is cause for grave concern — not only to journalists, politicians and ordinary citizens, but also to the legal profession itself. 

In the past few months, several Malaysian lawyers have been committed for contempt for discharging their duties as advocates and solicitors. In the first trial of former Deputy Prime Minister Anwar Ibrahim, for example, the judge frequently threatened to commit defense counsel for representations made to the court in their professional capacity. One member of the defense team, attorney Zainur Zakaria, was committed and sentenced to three months' imprisonment for filing an affidavit on behalf of his client. (He has been released on bail awaiting his appeal.) 

Litigants, too, have been summoned to show cause why they should not be committed for contempt for expressing what they believed to be legitimate complaints of unfairness in the administration of justice. 

In the classic 1900 British case of R v. Gray, the court made clear that the law of contempt was subject to an important qualification: "Judges and Courts alike are open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of court. The law ought not to be astute in such cases to criticize adversely what under such circumstances and with such an object is published; but it is to be remembered in this matter the liberty of the press is no greater and no less than the liberty of every subject of the Queen." 

It is in accordance with that statement of principle that the courts must reach decisions in contempt cases. And the public will measure their decisions against that principle. 

(Raja Aziz Addruse is a member of the Malaysian Bar Council. He was chairman of the council in 1976-78, 1988 and 1992) — Courtesy Time (Asia edition)

Right of reply

I am very surprised that The Sunday Times has given so much prominence to the case of Far Eastern Economic Review (FEER) Correspondent, Murray Hiebert in your issue of 19 September 1999. Since you have published certain details about the case while neglecting some very pertinent points which I presumed you have not been privy to, let me take this opportunity to highlight them. Since you have also published a protest letter regarding the arrest to Prime Minister Mahathir Mohamad from the delegates of a recent media colloquium in Colombo, I will also try to address issues raised in the letter. I do hope that these too would be given equal prominence in your newspaper.

Murray Hiebert, a Kuala Lumpur-based FEER correspondent was found guilty by the Shah Alam High Court on 30 May 1997 for contempt of court over an article he wrote headlined, "See you in Court" published in the January 23, 1997, issue of FEER (which The Sunday Times, Sri Lanka has also published on 19 September 1999).

Firstly, Hiebert's article was published when the civil suit instituted by Govind Sri Ram, against the International School of Kuala Lumpur (lSKL), was still pending before the High Court. It motivated the plaintiff to apply for an order of committal against Hiebert pursuant to the relevant laws for contempt of court. The civil suit against the defendants which was filed on 10 June 1996 was however settled out of court on 10 March 1997 after ISKL agreed to apologise to Govind openly over the events.

Secondly, Hiebert who had worked for FEER for more than 10 years in Kuala Lumpur should not have written the article as his wife was a senior employee of ISKL and there was an obvious conflict of interest. Hiebert had chosen to write the article without declaring this interest. Hence, he could not have exercised an independent mind and view when writing the article.

The article, when read as a whole, amounted to a serious contempt of court and an unwarranted attack on the Malaysian Judiciary. In convicting Hiebert, the judge had found that the nine-paragraph article written by Hiebert had constituted ingredients of contempt of court, among others, to scandalise the Court and execute prejudice against the plaintiff. It sought to attack the fundamental integrity of the Court and to apply pressure and intimidate the Court so as to influence the Court to decide the suit against the plaintiff.

Questions were also raised about the speed of which the civil suit was heard. These are all invalid due to the fact that both parties to the said civil suit had applied for an early trial date after they had complied with all the procedural requirements presented by the Rules of the High Court 1980. In such circumstances the Judge could not have delayed nor denied the parties of an early hearing date. 

It is to be reiterated that both parties had expressed their consent, desire and eagerness to have an early trial and none of the parties raised any objections to the contrary. It is not unusual for the Courts in Malaysia to set cases for trial earlier when so requested by the parties concerned.

On September 11, 1999 three eminent judges of the Court of Appeal upheld the conviction by the High Court but reduced the three-month sentence to six weeks. Under the three-tier system Hiebert can still appeal to the Federal Court and his lawyers have indicated that he will.

The system of separation of power in Malaysia is very clear. There are the Legislature, the Executive and the Judiciary. The Independence of the Judiciary is not to be questioned. The letter to the Prime Minister suggests that he intervene in a matter he has no jurisdiction in. The Judiciary in Malaysia is capable of exercising a just and independent judicial process.

I am also surprised that the colloquium after having examined some published articles regarding the case (I presume they must be the articles that you have published in your newspaper of 19 September 1999) came to a conclusion that the court has made a serious error of judgment. I am not sure if the colloquium has been presented with the full facts of the case and has read in full the trial judge's lengthy opinion.

Lastly, I totally disagree with the misguided opinion of the colloquium that the conviction of Murray Hiebert will do damage to the reputation and standing of the Malaysian Courts and the administration of justice in the country. On the contrary, the Judiciary in Malaysia is totally capable of upholding its reputation and standing and is able to ensure that the administration of justice in the country is exercised without fear or favour. Therefore unscrupulous and scandalizing attacks on the judiciary need to be handled with in its righful manner. 

- Shamsudin Abdullah, 
High Commissioner of Malaysia, in Colombo

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