theSun | THURSDAY JULY 24 2008
conversations
be a little bit more fly-by-night.
So you’re more in favour of the
traditional media (print) than online
media?
I support the traditional media but only in
a society which has an open and diverse
media – broadly owned. I mean we’ve
seen the problem around the world with
Rupert Murdoch owning too much media,
from television to print, in a number of
countries. We’ve seen it in other totalitarian
regimes where all of the media is owned
by the state, for example. We’ve seen it
in countries which attempt to muzzle
dissident views, like China or Saudi Arabia.
Both of these are not conducive to the
development of a harmonious society. I
personally believe that one of the ways in
which to deal with disharmony in society
is to allow people to vent their opinions,
and if they’re allowed to give voice to
their opinions, then they will not resort to
violence.
And indeed one of the reasons we have
the European Convention on Human
Rights is that it was recognised by those
who lived through the Second World War
that if there had been this plurality of
media, if academics had had the freedom
of expression during the rise of Nazism, it
would have probably been snuffed out and
we wouldn’t have had the war. So that’s
why Europe decided to guarantee free
expression and the same holds throughout
the world. That’s one of the reasons we
value freedom of expression so highly in
countries of the world where there is a
guarantee of free speech.
Has the Malaysian media arrived at
that stage of freedom of expression
and speech?
I don’t think so. For example the law on
defamation here is based on the law that
we had in England in the 1950s. It’s sort
of based on pre-independence. It certainly
pre-dates the new forms of media ...
everything from
tape recording
through to
One of the reasons we have the European Conven-
the internet. tion on Human Rights is that it was
Defamation is not recognised by those who lived through the Second
really catered for World War that if there had been this plurality of media,
by the laws. I mean if academics had had the freedom of expression during
judges have done
their best to adapt the rise of Nazism, it would have probably been snuffed
the old laws, but out and we wouldn’t have had the war.”
every country in the
world, virtually, has recognised the need to
reform the laws on defamation in light of
the modern media age.
As a consequence of the fact that we
have a global media, that we live in a
global information society, it is critical that Are we far behind in abiding by
we see that the laws on information and
defamation in Malaysia are brought up to
date and in harmony and compliance with
international law. The international treaty
to which Malaysia is a proud signatory
should help iron out some of the tensions
perceived by observers of Malaysia and
indeed Malaysia’s own media and lawyers.
So we need to review our laws to keep
up with the times?
Yes, that’s right. I mean many of the laws
– the law on sedition for example – is an
old colonial law of repression imposed by
the colonial power, the British. And it’s not
appropriate in a modern society and most
countries of the world have thrown off
the shackles of those kinds of law. And it’s
important for Malaysia to do the same.
Get rid of it altogether?
Yes … there’s no country in the world now
... no civilised country that believes that
anyone should go to jail for something
they say and this is true internationally.
For example, France has removed the
possibility of criminal libel so that you
can only be fined for what you say, and
also many countries – Sri Lanka, Japan,
India – have revoked their old criminal
libel laws. Britain itself has given a
parliamentary undertaking that the law,
although still technically in the statute
books, will never be used – and it hasn’t
been.
It is important to understand that
the days when people faced criminal
sanctions for writing and speaking should
be set to one side. No country in the world
practising international law – customary
international law – believes or says that
journalists, newspapers or writers should
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be either jailed or stigmatised with criminal
sanctions for what they write, what they
think, or what they believe. You can be
brought to account in a civil court. You can
be brought to apologise and correct errors
and defamation. That is accepted and it
is felt that in modern society that is the
appropriate response.
Perhaps it is helpful to explain what
I mean by customary international law
because it’s not something which is
taught in law schools. Judges, very often
because it’s not taught in law schools, also
don’t have much experience in dealing
with it. There are three ways in which
we make international laws. The first is
that countries make treaties with other
countries – they can be bilateral law or
multilateral. So many members of the
United Nations sign the International
Covenant on Civil and Political Rights
and Article 19 of that covenant guarantees
freedom of expression.
Malaysia is a signatory to that covenant.
We also have statements of law and good
practice issued by inter-governmental
bodies like the World Bank and develop-
ment banks around the world. We get them
from UN bodies as well, but none of these
statements are binding in national law
unless they are adopted by local legislation
or in some way the government says “we
will abide by this particular standard”.
Merely (setting) a standard to which
they aspire to is insufficient. There are
some standards which become universal
because so many people in so many
countries have agreed to a basic minimum
standard. It crystallises into what we call
customary international law and there
is now such a body of law. So many
countries have signed up to Article 19 or
its equivalent in the European Convention
or the Inter-American Convention on
Human Rights, that it becomes a universal
standard and applies to us because we are
members of planet Earth, not because we
are members of a nation. And at that point,
it becomes part of the domestic law of every
state and so customary international law
is part of Malaysian law, just as it is part of
the law in the UK or Saudi Arabia.
customary international law?
That’s a very good question! The answer
is that it varies, depending on what you’re
looking at. There’s no doubt that Malaysia
and Malaysian standards are changing.
We look at responsible journalism as a
defence – the so called Reynold’s Defence
– which has been pleaded on a number of
occasions in Malaysia. It’s been accepted
that decisions of the House of Lords on this
subject are good and I think rightly so, as is
the case with many other Commonwealth
countries.
I observe a pressure, a modernising
influence within the Malaysian society
to encourage a more open approach to
media, an ability to criticise public figures
more than has perhaps been customarily
accepted as appropriate. And that, I think,
is partly cultural and partly a natural
conservatism within society and the legal
profession, and every country has that
same sort of conservatism. I see that change
occurring and a pressure for that change in
Malaysia and I welcome it. It’s a good thing
for Malaysia and I think Malaysians would
welcome it.
So the pressure should be kept up?
Certainly. I think Malaysia will feel the
pressure from outside – the international
community, particularly through the UN
(which) will look to Malaysia to ensure
that it raises its game in terms of free
expression. I expect that the next time
Malaysia is asked to make a country report
to the UN on the state of human rights, and
particularly on freedom of expression in
Malaysia, it will be asked some fairly sharp
and pointed questions about some of its
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