Rajpal's Column

26th September 1999

Freedom of speech needs good judges

By Rajpal Abeynayake

There is no freedom of expression sans the independence of the judiciary.

Dato Param Cumaraswamy ( made a Dato by a Sultan in Malaysia for his fight against the unjust use of defamation laws in Malaysia,) has already made a report to a committee on the Independence of Judges and Lawyers in the UN about his concern over the appointment of the Chief Justice of Sri Lanka. When the committee finishes its deliberations, this report becomes a public document.

Param Cumaraswamy comes from a country ( Malaysia ) in which Criminal Defamation is rarely used, because Civil Defamation is overused. There was one suit against him, in which he was sued over statements he made about a commercial case in his capacity as a “UN special rapportuer for the Independence of Judges and Lawyers.’’

A Sri Lankan Judge of the International Court of Justice, Lucien Weeramanthry, giving his judgment on this matter, held Param Cumaraswamy is entitled to say what he wants about a commercial case in Malaysia, because he is the UN rapportuer on the Independence of the Judiciary.

Since the verdict, in particular , Param Cumaraswamy’s star has been on the ascendant. He has been increasingly portrayed as a man who is unstoppable in his cause for the independence of judiciaries in all parts of the globe.

This is perhaps why former International Bar Association President Desmond Fernando reminds an audience in Colombo that “Param Cumaraswamy has already voiced his concern about the appointment in Colombo.’’

He ( Cumaraswamy ) is certainly not a man who thinks that reputations are more important than justice.

Which is why , he says, there should be limits on what people could claim as damages if they win civil defamation suits. Says Desmond Fernando that “generally, the quantum of money awarded in successful defamation cases, depends on the reputation of the person being defamed.’’ Then , he adds sotto voce, “....that things are different in Malaysia.” The award , he says , “is dependent on the reputation of the defendant.’’

Again, its a reference to the voluble Dato Param Cumaraswamy, against whom a massive award was made recently by a civil court in Malaysia..

A colloquium on the Laws of Defamation and Freedom of Expression, as expected, highlights the divergent views between the “people of the law ‘’( lawyers ) and journalists.

Lawyers look at things from a defined legal standpoint. Says a lawyer from India, for instance, that the matter of civil defamation should not even come into the debate on freedom of expression and the laws of defamation. She feels that the freedom of expression is something that is always essentially curtailed by the state. So, she extrapolates, the fight against the stifling of freedom of expression is essentially a fight against the state - for example the Sri Lankan state, which should not be allowed to use criminal defamation laws to stifle the freedom of expression of journalists.

But, if, say a private citizen wants to sue a newspaper for defamation, and files a civil suit, she says that is a matter between private citizens, and should not be a part and parcel of the fight to retain the freedom of speech.

But countries have been proven to be resourceful. In Zambia, for instance, the government planted a story on a journalist, to the effect that the President had got married. The particular journalist was glad to get the scoop of the decade.

He checked the marriage registry, and found out that the entry for the day had been expunged. This convinced him more that the President had clandestinely tied the knot.

He ran the story. But, no marriage had taken place. The government sued him in a civil ( not criminal) suit, and the Editor ended up being impoverished.

The stratagems of state, therefore , are seen to be evil. They are diabolical, as it has been evidenced by the extensive use of criminal defamation in this country. They are evil , as it has been seen in the type of things that have been going on in countries such as Malaysia and Zambia through the extensive use of civil defamation laws.

Of course the dichotomy between the need to protect reputations and the need to retain freedom of expression, never seems to cease to be of interest . One old time jurist, has written evocatively about reputations, and this was somewhat after the times of Oscar Wilde and his celebrated libel suit (which eventually landed him in jail.) “ A reputation,’’ he said, “ is like a bale of cotton wool placed on the middle of a street. Once the wind disperses the cotton wool in all parts of the street and the countryside, it’s very difficult to put the cotton wool back in the sack the way it was before.”

A participant at a working group at the Colloquium mused, quoting an Oxford Law scholar that “Editors are more powerful that Cabinet Ministers in Britain.’’

Perhaps, the Colloquium would have reached the conclusion, that if this power is invested in journalists, it is invested with a purpose.

That’s why the Colloquium made a declaration that courts should be mindful about the “chilling effect on the freedom of expression’’ when it makes awards against newspapers for civil defamation.

Various devices such as placing limits on awards made against newspapers on civil defamation were suggested and adopted. The declaration of the Colloquium seeks to create a global benchmark, which is that courts should always weigh the defamation against the countervailing right of freedom of expression. This may be galling to some straight - jacket lawyers or champions of the idea of civil society. For instance, the idea of “truth’’ as an adequate defense against defamation was pooh-poohed by some human rights champions who call Colombo home.

But on the balance, it is safe to have truth as a defense. It is safe on the balance. It means that interested parties cannot hide behind the requirement of “truth plus public interest’’ The message is — freedom of expression is paramount, and the countervailing factors have been used often enough as an excuse to stifle the right to state the truth. And enough is enough.

Hulftsdorp Hill

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