Dont criminalise free speech: Param
There is a growing concern over the use of criminal defamation and sedition by governments to muzzle free speech, said United Nations special rapporteur on the independence of judges and lawyers Param Cumaraswamy at the Commonwealth Press Union biennial conference in Sri Lanka.
"In Sri Lanka, newspapers have been battling prosecutions for criminal defamation. However, this offence has since been abolished," said the former chairperson of the Malaysian Bar Council in his speech last Friday.
He said that the situation in Malaysia was different. "Sedition charges are still preferred before the Malaysian courts."
Param pointed out the case of the recent raid by the police on independent online news daily malaysiakini to investigate a report lodged by Umno Youth.
"The report alleged that an article in the Internet newspaper was racial and therefore seditious under the Sedition Act," he said.
"The question to ask is whether these offences, including the offence of scandalising the court in contempt cases, should be abolished. I, for one, would support a campaign for such abolition," he added.
On Jan 20, the police seized 19 computers, including four servers, from the malaysiakini office in Kuala Lumpur after the website refused to divulge the identity of the person who wrote the allegedly seditious letter.
Fifteen of the computers have since been returned, but the police are still holding on to the four servers.
Param also lamented the use of criminal defamation to stifle free speech in Malaysia.
"Just up to two years ago it was fashionable for Malaysian courts to award huge sums as damages for defamation. That is history. The trend now is to peg these awards to the level of awards in personal injury cases," he said.
Judiciary role
In his speech to the senior executive and publishers from the Commonwealth Press Union - an international body with 750 members from 49 former British colonies - Param implored the courts to stand up in defence of free speech.
He said freedom of speech is a human right which falls for protection by an independent judiciary. However, he also urged the media not to undermine public confidence in the judiciary.
"It must be borne in mind that an independent judiciary is a prerequisite for the protection of free speech. Therefore, it is in the interest of the media to see that judicial independence and confidence in the institution are preserved and not ndermined."
Param argued that freedom of expression is crucial in a democracy.
He quoted former chief justice of Sri Lanka, Sharvanada, who said in a 1992 judgment:
"The basic assumption in a democratic polity is that government shall be based on the consent of the governed. The consent of the governed implies not only that the consent shall be free but also that it shall be grounded on adequate information and discussion aided by the widest possible dissemination of information from diverse and antagonistic sources.
"The crucial point to note is that freedom of expression is not politically useful but that it is indispensable to the operation of a democratic system."
Param also highlighted the case of the Supreme Court of Ghana in 1993 which criticised the state-owned media of being the mouthpiece of the government.
According to him, the court said, "State-owned media are national assets: they belong to the entire community, not to the abstraction known as the state; nor to the government in office, nor to its parties.
"If such national assets were to become the mouthpiece of any one or combination of the parties vying for power, democracy would be no more than a sham."
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