Loyal Followers

Wednesday, September 21, 2011

The charge against Mat Sabu

Mat Sabu is charged today for criminal defamation. I have not read the exact charge. However from various reports, apparently he is charged for criminally defaming the police, soldiers or their families. 
I don’t want to say much about the charge as I don’t want to be hauled up for making comments while the case is going on and thereby breaching the sub-judice rule (actually I think sub-judice rule is not even applicable in Malaysia, but that’s another issue).
We now see it fit to even abolish the ISA and Emergency Ordinance for the sake of freedom and liberties. We now see it fit to repeal the Printing Presses and Publication Act to restore freedom of speech to the people. However we cannot even treat opposing views and different interpretation of historical events or facts with respect and civility.
On this score, I am against all the police reports against Mat Sabu as well as against Professor Zainal Kling for their respective statements and opinions. A mature society and democracy should be able to deal with differing opinions calmly and of course, intellectually.
There are various other people who should be charged for sedition. I don’t have to list them out here. But they are not so charged. I wonder what has happened to the investigation on the Christian conspiracy and why it has taken such a long time to complete.
I am not in support of what Mat Sabu has said. I have to make this clear. In fact I am not in love with PAS either. This post is simply about the law.
I know a thing or two about the law of defamation, having done about 10 defamation cases involving some prominent personalities and establishments in my career. This is all I have to say about defamation:
i) you cannot defame the dead under our law. The rationale is the dead cannot have a reputation to protect. Nor can the estate of the dead have reputation. (while this position is correct in civil defamation, a learned friend of mine has pointed out that under section 499 of the Penal Code, a deceased person may be indeed be defamed , if "the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives." The AG would therefore have to prove that Mat Sabu had intended his statement to be hurtful of the deceased person's family or near relatives.
ii) for somebody to be guilty of defaming a person, he/she must have uttered an untrue statement which essentially lower the reputation of that person or put that person in public odium. Now, if Mat Sabu said that Mat Indera was a freedom fighter in the Bukit Kepong event, the AG would have to show how that statement had lowered the reputation of the police/soldiers or their family or put them in public odium.
iii) there must be a specific party or person or group of persons being defamed. Meaning, the statement uttered must refer to, or must be capable to be understood as referring to a specific person or group of persons. For example, if I say Ahmad is a rapist, not all Ahmad can sue me if my statement is untrue. My statement must refer to a certain Ahmad or must be capable of being interpreted to refer to a certain and specific Ahmad. Otherwise all the Ahmads in the world would be allowed to sue me for defamation. So, in this respect, the AG must be able to prove that Mat Sabu’s statement had indeed referred to or was capable to be interpreted as referring to a specific person or group of persons.
I am sure the AG and his people have given great and in-depth thoughts and consideration to all legal factors before proffering the charge against Mat Sabu.
I wish the AG good luck in this case.

27 comments:

Anonymous said...

He does not need any luck...he has all the power to do what he wants or likes...that is Boleh land

Anonymous said...

The charges is intend to destroy the credibility of Mat Sabu in the eyes of Malays voters. Whether the charges will stand or not will not be the key factors.

UMNO said press charges...then AG will have to follow the master instructions. Both holding each other skeletons!

cschan said...

With the GE13 round the corner, umno would do anything to distract us from the real issues. UMNO will even sue its own shadow if it can achieve that.

Anonymous said...

Yeah, just like when they discharged Mat Sapu for close proximity charge...keep on sweeping, Mat!

Hopeful Msian said...

But, then again. AG only needs to charge and create publicity. They dont need to get a person convicted. Look at how many murder cases that they have lost over the last few years! Failing to convict has become their expertise (Oops.. will i be charged for this puff?)
Their job is settled at 'higher level' or perhaps to appease higher level.

Anonymous said...

debating 'history' cannot be criminal offence, maybe civil case!!

LoyarBeruk said...

1. You can defame the dead under criminal defamation. That is clear.

2. Untrue statement that lowered the reputation of a person? Untrue that Mat Indera was a freedom fighter - communism does not support freedom. Yes, it lowered the reputation of those dead people from the Rumah Pasong, the police, the 2 wives and the 2 kids. Because calling Mat Indera a freedom fighter means that those dead people were opposed to freedom. That cannot be true because the British were in support of freedom and we were a legal protectorate and de facto colony. The British were much more in support of freedom than the Sultans and orang Istana. Before analysing this statement, consider the difference between freedom and independence.

3. Specific group of persons? Those folks chilling out at the Rumah Pasong who were murdered that day by a group of guerillas who were pushing their agenda of a communist state.

Looks like AG has this one in the bag.

The million dollar question is - what the fuck are we doing in 2011 with criminal defamation laws from 1976?!? Shouldn't the family of the murdered cops be suing for civil defamation? Why the heck is the state protecting people's reputations?! I can understand if it is limited to things like imputations that a person is diseased, homosexual, insane, a criminal or other serious things like that.

But making it criminal to call some people heroes or villains is just plain stupid.

Anonymous said...

Loyar Beruk,

You seem to be self-contradictory when you say "the British were in support of freedom and we were a legal protectorate and de facto colony".

How can a de facto colony be said to be in "freedom" ??

I assume when you say "the British were in support of 'freedom', that 'freedom' is referring to personal, individual freedom. But in Mat Sabu's context, the "freedom" he was referring to was "freedom from colonization", which was at the national level. They are two different things. But that's the crucial difference which has confused many people.

Anonymous said...

Art,

If the government wants to bring you down, leave it to the AG!!! This is Malaysia Boleh and the AG tetap Boleh.

Anonymous said...

Why doesn't someone file a complaint with JAIM, that according to, internet Gani Patail was/is bonking his satff?

caligula said...

Art,
I'm no lawyer. But that does not mean I'm ignorant of the law.

I think at this stage in our lives, we view things/situations, from a political stand. We can't help it.

I think under normal circumstances, we wouldn't be arguing and debating about this -- that the police shouldn't take Mat Sabu to court because people should be free to say what they like.

I agree people are free to say what they like. And there are laws to protect people who are hurt by other people's utterances etc.

The police or whomever have the right to take to court people who they believe have breached the law.
And they'd better have a good case.

But here's the thing..all this is happening against political developments in the country. So, I get it.

Also, here's another thing -- frankly and honestly, I think the police shouldn't even bother. Bad call. Why get yourself into another mess? (that's thinking politically because why should anyone think about getting into a mess if they think it is the right thing to do, as opposed to a good thing).
I agree with loyarberuk -- the families should be the ones suing Mat Sabu.

So, I'm thinking -- why do something that's going to taint you further. Perhaps, the police are simply doing what they feel Mat Sabu has done something really really wrong and the AG really believes that they have a good case.
OR -- ada musuh dalam selimut...purposely want to screw things up for the police/AG, oh the government-lah. (not that'political/conspiracy theory)

That said -- Mat Sabu can fight the case, man. He is innocent until proven guilty.

caligula said...

art -- so sorry. i've made some typo error in this para:" OR -- ada musuh dalam selimut...purposely want to screw things up for the police/AG, oh the government-lah. (not that'political/conspiracy theory)".

it should read :OR -- ada musuh dalam selimut...purposely want to screw things up for the police/AG, or the government-lah. (now that's a political/conspiracy theory)

LoyarBeruk said...

Anonymous (the one who debated with me on freedom)

Read this again "Before analysing this statement, consider the difference between freedom and independence."

I think it would be more accurate if you replaced "freedom" with "independence" in your argument.

Independence from colonization is accurate. Freedom from colonization is a bit poetic and not very accurate.

Mat Indera and the CPM were fighting against colonization. Fighting for independence. What did they want to replace colonization with?

Communism. That has never been about freedom.

Anonymous said...

LoyarBeruk,

For our common benefit, I'm obliged to say this: It is a matter of convention that the word "freedom" which is contained in "freedom fighter" has never been used to refer to personal, individual freedom (until you, that is), but has always been used to refer to some political, ideological freedom.

I do agree that this conventional use of the term "freedom fighter" is a bit poetic. But the word "freedom" itself is inherently very poetic and I think it's difficult to be 'accurate' about it.

LoyarBeruk said...

Anonymous

Since we are being poetic and all, consider this - a person who fights FOR freedom from external rule is a person who fights AGAINST colonialists.

The million ringgit question is - but what is he fighting FOR?

Communists were fighting for communism.

It's mere politics for Mat Sabu to say - forget about what Mat Indera was fighting for and just focus on what he was fighting against.

Only fools get caught in the trap of "fighting against" couched in language of "fighting for" - like "he was fighting for independence" when the real message is "he was fighting against colonialists"

Mat Indera was fighting for independence (against colonization) and he was fighting for communism (against freedom).

To just focus on "fighting against colonization" couched in the language of "fighting for independence" without dealing with the more important question - what was he really fighting for? - is to just play politics.

That's Mat Sabu's job. To play politics. But its not our job to be played politics with.

Our job is to get to the root of the matter and find answers to difficult questions that need to be answered for this country to fucking move forward.

Yes, Mat Indera "lawan untuk merdeka" tapi Mat Indera juga "lawan untuk komunisme".

Jangan lupa that fact.

Now, if Malaysians could just stop fighting AGAINST BN and start fighting FOR SOMETHING, then this country has a fucking chance.

Anonymous said...

I suppose the AG has supported the charging of Mat Sabu in court coz' he knows very well that with a Kangaroo court, anythin is possible even if evidence is insufficient.

Great article ART, you should start giving lessons to AG Gani on law. What a d...o.

Anonymous said...

LoyarBeruk,

Communism is not my favorite type of political-economical governance method. And I presumed you are all for personal freedom and a democracy (which, as everyone knows, is somewhat lacking in Communist states).

Yet when you urge people to stop 'fighting against BN',(well I don't exactly know what you mean by 'fighting' here), but are you not moving away from the ideals of personal freedom and democracy (which you praised the Brits for having them) ?? Actually that statement of yours precisely has a whiff of Communism in it.(It sounds authoritarian.)

If you care to check on the term "freedom fighter" on Wikipedia, you'll see the definition of the term and also examples of those people who are called freedom fighters. And as you yourself have admitted, Mat Indera can be categorised as a freedom fighter, who "lawan untuk kemerdekaan." Errr, No doubt about that, right ?

You also mentioned Mat Indera "lawan untuk komunisme"(meaning: fighting for Communism). That in fact belongs to a different issue but even if that's true, even if Mat Indera did also fight for Communism at the same time, it does not at all negate Mat Indera's status as a freedom fighter since on the Wikipedia's list of freedom fighter there are also Communists.

jose said...

it's funny when people call our courts "kangaroo courts".

I think that's taking it too far.
sure, there are judges and there are judges. there are lawyers and there are lawyers.
i've heard lawyers describe some judges as lenient, some tough etc..i'm not sure if any of our judges are corrupt. Is there proof?

i see how some lawyers can kowtim their cases. if there is corruption, it's not just one party, you know.


i'm sorry...i won't be drawn into calling our courts kangaroo courts.

Anonymous said...

Art,
The part about repealing ISA and PPPA tu jangan lah serious sangat. Itu untuk pancing undi punyalah!

Anonymous said...

Communism fundamentally and generally isn't colonialization or authoritarianism - its supposed to set free society from authoritarian shackles. As far as liberty and property rights go absolute monarchies are no different from fascist capitalism.

Capitalism as per present US quagmire is deprivation galore where the system robs the populace and the world, especially workers and general labor.

China today is only some shades different from Malaysia where authoritarian rule, as via the corrupt SPR, the citizens vote and voice is manacled as the Communist Party of China does to its rakyat.

There certainly is blatant capitalism in China now but it's supposedly communist. Through 5,000 years, the wealthy in China till today have fed on the blood and bones of the billions of China citizens.

Anonymous said...

I agree with you, anonymous 00.52.

When I alluded that Communism is all about authoritarian rule, I was actually doing injustice to the fundamental form of Communism. It is supposed to be about setting free the society, especially the working class, the proletariat, from the shackle, the exploitation of the capitalists.

So in fact, we could say that the Communists who were fighting for Communism were actually fighting for a form of freedom.mmunism is all about authoritarian rule, I was actually doing injustice to the fundamental form of Communism. It is supposed to be about setting free the society, especially the working class, the proletariat, from the shackle, the exploitation of the capitalists.

So in fact, we could say that the Communists who were fighting for Communism were actually fighting for a form of freedom.

Anonymous said...

Anon @00:52 & @10:24,

The fact of the matter is just like someone once commented;

‘Communism has lost her classless dream, while capitalism has lost his inbuilt laissez-faire'

Human being r fallible & there is just NO fool-proof idealism of any kind, religion included!

anomie

LoyarBeruk said...

Osama Bin Laden was also fighting against capitalism.

But what was he fighting for?

Do you geddit now?

Anonymous said...

LoyarBeruk,

Osama Bin Laden did not live in the Capitalist vs Communist era we were talking about.

He lived in an era where even the most 'capitalist' societies, e.g the US, had all kinds labor laws to protect their working class e.g minimum wages, maximum working hours, ...etc you name it, to prevent the scenario of 'exploitation by capitalist' from happening without check and control.

So there did not exist such a 'shackle'(in the Communism's context) to set free a society from by Osama Bin Laden. Unlike the era in which Mat Indera lived.

Osama Bin Laden was said to be "fighting" against "American Capitalism", but this would be in a totally different sense of Capitalism, as compared to the one we were talking about.

Anonymous said...

Wouldn't it be much less messier if the A-G just charge Mat Sabu for farting in public?

Anonymous said...

I've been following the discourse on `freedom fighters' and `independence fighters' and finds it very interesting, to say the least. Let me add to the debate by arguing on the line of thinking or rationale that of Mat Sabu and the likes, which argued for or even sanction violence as a accepted means to achieve the `goal' of `free from' or `free to' (freedom, independence,or whatever terms people want to call it) by killing the innocence people. If one agree on that kind of reasoning, then one should accept the Talibans, the Osamas and many other so called `freedom fighters' of this world. Can Mat Sabu accept violence action by the Kelantanese if they feel that their `freedom' has been take away from the by so-called the Islamist PAS and would fight the free Kelantan. Will that be halal?

I would argue that the concept `freedom' has meaning in specific context. It's is alwaya problematic, if one imposes a meaning out of a certain context.

anti-violence

Anonymous said...

anti-violence,

I am like you, a peace lover, an anti-violencer.

Perhaps our forefathers during the period from year 1511 onwards till year 1957 were also peace lovers and anti-violencers. Otherwise, how come we stayed being colonized for 446 years ! Or you want to tell me that it's because our forefathers did not speak Portuguese, or Dutch, or Japanese, or English...to negotiate for our INDEPENDENCE ?

If you don't like whoever today, you can exercise your constitutional right as a citizen and vote them out in the elections, and also vote in the people you like. Could our forefathers vote the Colonialists or Colonizers out during their time?

If the British did not agree to our Independence in 1957, and still want to 'protect' us till today, what will you do today?
Well, for me as a peace lover and an anti-violencer, I wouldn't be as stupid as Mat Indra et al to take up arms and risk my life..to fight for Independence...are you crazy ?? Why bother ?? We can still sit comfortably in our chairs or sofas and watch some youtube what !