Month: December 2014

Developing A Litigation Culture

Malaysian Prime Minister, Datuk Seri Najib Razak, through his lawyers has issued a letter of demand to PKR’s Rafizi Ramli and DAP’s Tony Pua over a few things the outspoken duo have said in recent times 

Our premier wants Tony Pua to publish a retraction and apologise within 14 days in two national newspapers, or face legal action for his speech recorded in the November 3 video: “Tony Pua: Najib is creating the biggest scandal ever in the history of Malaysia

Failure by Rafizi and/or Tony Pua to act as per the letter of demand would most definitely result in legal action being initiated against them

Some netizens take this as a sign of cowardice on the part of Najib because it comes across as an act to scare off his detractors. I, however, think it is a good thing that Najib wants the courts to adjudicate what has been said by the two Pakatan Rakyat leaders regarding the reduction of fuel subsidies and the 1Malaysia Development Berhad (1MDB) respectively

I say so because if the issue reaches the courts, evidence will be have to be submitted by both parties. Through that and the court’s ruling, the people can ascertain objectively who is actually correct/telling the truth.

Does the money saved from the reduction of petrol subsidies go into Najib or Rosmah’s pocket? We will most assuredly find out. Regarding 1MDB, is there any hanky-panky use of the people’s money? We will undoubtedly find out

If Mrs Donoghue did not sue the manufacturing company of the ginger beer after finding a decomposed snail in her drink we would not have the landmark case of Donoghue v Stevenson

In that case, Lord Atkin established the all important ‘neighbour principle’ and it revolutionised the tort of negligence as we know it today.

This shows us that case law is an important contributor to the development of the law as it ensures that the law stays relevant in light of changing social, economic and cultural conditions

Moving on, the freedom of speech does not include the right to defame a person. Therefore, if Rafizi has no evidence to support his claim that Najib or Rosmah would directly/indirectly benefit monetary wise from the reduction of fuel subsidies, he should be liable for defamation

In Tony Pua’s case, he gave some immensely mind boggling statistics. However, if he does not have any solid admissible evidence to back his allegations about 1MDB, he would have to fork out a lot of money to compensate Najib for the “tremendous stress and embarrassment” caused

If Najib wins his lawsuit(s) against Rafizi and/or Tony Pua, the enormous amount of damages usually awarded in defamation cases should act as a precedent to teach our leaders to speak only when they have proof to attest to their claim.

If our public figures do not learn that lesson, we’d have more and more Mashitah cases whereby the irresponsible person speaks unsubstantiatedly and then gets whacked left, right and centre (metaphorically) by the public

In conclusion, while Dr Mahathir is of the opinion that taking legal action for political slander is useless, i beg to differ for the aforementioned reasons. The way I see it, litigation over controversial issues would be beneficial for the common folk who ardently follow our nation’s politics. Developing a litigation culture is good to a certain extent

*Check this awesome article out at The Malaysian Insider, The Malay Mail Online, and Free Malaysia Today

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Sedition Act: What The People Want

In 2012, our Prime Minister openly vowed that the Sedition Act 1948 would be repealed and be replaced by a National Harmony Act. In London last year, he renewed his pledge to abrogate the Sedition Act

To the surprise of many (including MIC’s deputy chief), Datuk Seri Najib Razak decided that it mattered more to please his fellow party members and regain their support, than to be a man of his word and honor his promise.

In UMNO’s recently concluded annual general meeting, Datuk Seri Najib announced that the Sedition Act 1948 is here to stay and will receive further strengthening (as if the Act is not oppressive enough at the moment)

We now know that maintaining the Sedition Act is what UMNO, its members and several other BN component parties want. But more importantly, is it what the electorate wants? The only reason the Government is in power is because of the mandate given by the people. Never forget that political sovereignity lies with the electorate!

So how do we know what the people want? One of the more effective ways would be by engaging in some form of direct democracy. It is not something new and has proven to be a good barometer of the public’s opinion

Alex Salmond, former leader of the Scottish National Party (SNP) wanted Scotland to exit the United Kingdom and go solo despite being a part of Great Britain since 1707. As SNP advocates Scottish independence, it is safe to assume that all of Salmond’s party members would have wanted the same for Scotland

The question is, did Alex Salmond and the SNP decide amongst themselves whether to leave the union on behalf of the people of Scotland, just because they were democratically elected? No!

What happened is that Alex Salmond and co got the UK Government, led by Prime Minister David Cameron, to allow Scotland to conduct a referendum regarding its future in the UK (see the 2012 Edinburgh Agreement)

The decision to leave the United Kingdom would have had grave repercussions, thus it was only logical that the people should be consulted. What better way to obtain the public’s views than through a referendum?

The Scottish Parliament then passed the Scottish Independence Referendum Act 2013 and the Scottish Independence Referedum (Franchise) Act 2013 in order for the referendum to take place

The 2014 Scottish Independence Referendum showed the entire world that the majority (55.3%) of people who voted wanted Scotland to remain in the United Kingdom. Why can’t we have a referendum regarding the preservation/repeal of the 1948 Sedition Act?

Some of you may be wondering, “but going independent is not the same as maintaining the Sedition Act!” That’s true to a certain extent. However, once you see the bigger picture, you’ll see that both have the ability to impact the lives of the people

It has been established that it may be seditious to give a legal opinion (see Karpal Singh’s case), or to state the law as it is (see Azmi Sharom’s case), or to ‘like’ a Facebook page of your choice (see case of Form Five student). Still disagree with me?

Furthermore, less than a month ago, the state of Massachusetts conducted a referendum regarding the abolition of the Massachusetts 2011 casino gambling law. The result: 60% of voters agreed to preserve the statute, and the legislation remains valid till today. If a state in the United States can do so, why can’t we learn from their example?

After all, some who voted for Barisan Nasional may be against the Sedition Act because of its possible misuse due the absence of requisite to prove the accused’s intention (contrary to criminal law principles)

Perhaps many who voted for Pakatan Rakyat are against the Sedition Act because of the wide definition of ‘seditious tendency’ which leaves it open to potential abuse

Moreover, fence sitters could be sick and tired of the Sedition Act appearing to be a tool for the Government to silence dissent and Opposition leaders. There are so many uncertainties which can be resolved by a simple referendum!

Anyhow, by virtue of going back on his promise, Datuk Seri Najib has created a very dangerous precedent in which the very promises/pledges that come out of his mouth are subject to sudden change. The only silver lining is that his flip-flop attitude may lead him to someday make a u-turn regarding his decision to preserve the Act!

*The Malay Mail Online, Malaysiakini, and Free Malaysia Today featured this article