Activist groups have contributed to the general well-being of society at large, although what they say may not be comfortable or may be irritating, Court of Appeal judge Justice David Wong Dak Wah said.

In recognising the role played by activists and activist groups, Justice Wong said Malaysians live in a much more liberal society where the concept of transparency and accountability are very much part and parcel of their lives.

Despite this, the Court of Appeal judge noted, this does not give activist groups a licence to defame.

“In the case at hand, the most it can be said, is that what was said may not be ‘music to the ear’ or may be irritating to the appellant, but that cannot be equated to defamatory utterances.

“The freedom of speech entrenched in our Federal Constitution must be construed in that context,” Justice Wong said in dismissing the appeal by Raub Australian Gold Mining Sdn Bhd (RAGM), which had sued Hue Shieh Lee (photo), a vice-president of the Pahang Raub Ban Cyanide in Gold Mining Action Committee for defaming the company in two articles.

A copy of the 17-page judgment was made available to Malaysiakini.

Justice Wong led the three member bench, along with Court of Appeal judges Justice Umi Kalthum Abdul Majid and Justice Kamardin Hashim, in making the unanimous decision on Oct 21.

RAGM complained that Hue had defamed the company by issuing a press release citing a survey commissioned by the Bukit Koman villagers that had discovered some sort of cyanide-like odour since 2009, which may be affecting their health.

Justice Wong's written judgment was recently cited by lawyer Gurdial Singh Nijar, when representing Bersih 2 chairperson Maria Chin Abdullah, who was successfully granted leave (permission) to challenge the Home Ministry's ban on her travelling overseas, to recognise the role of activists.

The Court of Appeal judge further cited the notion of freedom of speech, as outlayed by former Lord President Sultan Azlan Shah's judgment in the Dato Menteri Othman bin Baginda and another vs Dato Ombi Syed Alwi Syed Idrus, who recognised the constitution as a living piece of legislation, and that its provisions must be construed broadly and not in a pedantic way.

Sultan Azlan, Justice Wong said, recognised that values of society change over time.

“It is incumbent on the courts to interpret the fundamental right of freedom of speech to reflect the present day values of the society. Of late, our courts have recognised the right to life in the framework of our constitution, which in our view includes the right to live in a safe and healthy environment,” the judge said.

Activist expressed concern for residents

In dismissing the RAGM's appeal, Justice Wong said Hue was merely expressing her concern for the residents, based on a finding of the survey, in her press release.

“In our view, she was only stating a finding of the survey and expressing her concern for the health of the residents. By expressing her concern for the residents, she was only exercising her rights as an activist to bring to the attention of the relevant authorities to allay the residents fear."

The judge noted that the Department of Health investigated and found the ill-health of the residents was not abnormal.

“But that does not make the statement by Hue to be defamatory. In fact, we say that she should be commended for doing her social duty to bring to attention what was the fear of the Bukit Koman residents, a village next to the plant owned and built by the appellant (RAGM),” Justice Wong said,

“Further looking at the press statement as a whole in a reasonable and objective manner, we, with respect, cannot see how these words had exposed RAGM to hatred, contempt, or ridicule or lowered its estimation in the society at large,” Justice Wong said.

Finding the claim against malicious falsehood to be without merit, Justice Wong dismissed the appeal and ordered RAGM to pay RM20,000 in costs.

RAGM was represented by Cecil Abraham while Jessica Ram Binwani and Theivanai Amarthalingam appeared for Hue. RAGM also lost the case in the High Court in Kuala Lumpur.