Can Najib win the case against Malaysiakini; after all, the views expressed through the news portal of public interest, says Chan Chuck Hoi.
It has always been accepted in law that any person who holds or seeks public office or a position of public trust offers herself to public attack and criticism.
It is also recognised that the public interest requires that such a person’s public conduct shall be open to the most searching criticism and scrutiny. Per Bain J. in Manitoba Press Co. v. Martin:
The private character and conduct of a person who fills a public office or takes part in public affairs may also be the subject for fair comment in so far as it has reference to or tends to throw light on his fitness to occupy the office or perform the duties thereof (ref. Gatley on Libel and Slander).
Therefore by virtue of his public position as Prime Minister, Najib has committed himself to the propriety or merits of his appointment and therefore is the subject of public concern, scrutiny and searching comment.
In vying for a public position, a person has opened himself to public scrutiny or demands and he should be mature enough to accept both praises as well as curses. If he only wants total submission but cannot accept dissent or criticism, he should not seek such high office as that of a PM.
I believe that in law it is submitted that the correctness of the inference drawn by the critic is not the true test in determining whether an imputation of corrupt or dishonourable motives or any other defamatory imputation is justifiable as fair comment.
The true test is propounded by Beckley L.J. in Peter Walker Ltd v. Hodgson:
Is the inference the honest expression of the opinion the defendant held upon the facts truly stated, and warranted by the facts in the sense that a fair-minded man might reasonably draw from that inference?
If the criticism is fair in the eyes of fair-minded persons, although it may not be correct, the defendant shall not be liable.
A person may be prejudiced and hold a wrong opinion and draw erroneous inferences; still, the comment will be considered fair if the inferences represent the honest opinion of the writer who may feel that that is the only way to help to right a wrong or mismanagement.
The views expressed through Malaysiakini articles and the comments from its readers are matters of public interest or the words are fair comment from concerned members of public who honestly feel that non-action on their part may cause the mismanagement of the government and bring disrepute to Malaysia.
It is up to the public figure, in this case, the PM, to clarify and prove himself in reply.
Chan Chuck Hoi is a former teacher and active unionist.