OSA welcomes that initiatives being taken in the Maldives to strengthen the freedom of expression. It also welcomes the report of the UN Special Rapporteur on Freedom of Expression, Mr Frank La Rue and his calls for measures to strengthen freedom of expression in the Maldives.
The OSA would like to note the contributions that its patrons continue to make to promote freedom of expression in the Maldives. As Frank La Rue noted, the former Attorney-General, Dr Hassan Saeed had parked the provisions in the penal code that criminalised defamation- an extremely difficult thing to do at a time when Dhivehi Observer and Koimala were taking press freedom to the gutter.
Former Justice Minister Jameel was quite enthusiastic about providing civil remedies for defamation – as an alternative to criminalising slander and libel.
Former and current Foreign Minister Shaheed always spoke in defence of a free press, and had indeed invited Frank La Rue to undertake the visit to the Maldives. It was he who began to celebrate Press Freedom Day in the Maldives, back in 2006.
Despite being champions of freedom of expression, Dr Shaheed last week filed a defamation suit against Umar Naseer. This has come as a surprise for some people, who had hoped that Dr Shaheed would not take anyone to court on a defamation suit. It was he who had demanded in 2007, when civil remedies for defamation were being introduced, that all ministers must make a public declaration never to pursue even civil proceedings against defamation.
So last week came surprising U-turn, or so it would appear, until his statements and actions in this matter are closely scrutinised.
In filing the suit, Dr Shaheed’s lawyer, Dr Jameel said that one of the purposes of the suit was to set some legal precedents in the country. Although one fears that Dr Shaheed’s lawsuit could limit the scope for freedom of expression, it can, on the contrary, expand the boundaries of free expression in the country. No one will argue that it is time that the judiciary set certain standards for litigation in defamation.
Dr Jameel is amply qualified to aim at those high standards which should make his PhD supervisors at the University of London very happy indeed.
In fact, Dr Shaheed’s handling of the case has already been different from the older methods of dealing with defamation. The first of these is that he voluntarily chose the civil lawsuit over criminal proceedings. He could have easily chosen criminal litigation, but to the surprise and delight of many journalists, chose to seek civil remedies.
The second is that he chose not to take any of the journalists or media outlets to court on the matter. A number of media platforms repeated or disseminated the defamatory allegations. This distinction that Dr Shaheed is making has significant implications for strengthening press freedom in the country, for a firm legal basis for this distinction is likely to be established in the court.
And the third is that he speaks about setting legal precedents. So far in the Maldives, there is no distinction made between alleged defamation of public figures and private citizens, between compensatory and punitive damages, and between contemptuous damages and aggravated damages. Neither has the usual defences for defamation, such as fair comment and public interest, been cited or contested in court. Nor have mitigating or aggravating circumstances been discussed. At least some, if not all, of these concepts are likely to be discussed in a defamation suit.
In terms of setting legal precedents, a lot will depend on how Dr Jameel lays out the arguments. One hopes that the argumentation will provide for the adoption of modern standards of defamation proceedings. If that is indeed the case, by the time the lawsuit ends, journalists might feel more secure about reporting on matters of public interest, without reckless disregard for the truth.
One also hopes that Dr Jameel’s argumentation will introduce to the Maldivian judiciary new concepts in the domain of freedom of expression and set a very high bar on defamation, through a discussion of legitimate defences against defamation, the concept of malice and reckless disregard, of libel per se and aggravated damages.
At the least, we should hear how the Foreign Minister responds to the call by Frank La Rue that state officials do not pursue any defamation lawsuits. What is the international norm on this? Let us hear this in the Court.
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4 comments:
If this so called test case begins to dull the "dirty bombs" of Koimala, bandaara and DO, then there would be more space for constructive public criticism. It is time that political debates and disagreements were carried on off the gutter and in our living rooms.
Did you hear the comments that former Legal Reform Minister said about defamation? I fully support his views that defamation should not be criminal.
Dear Dr Shaheed, why have you not filed a lawsuit against the newspapers and other media that spread the Kosovo allegations? DO,Minivannews, Haveeru, Miadhu, Aafathis, Jazeeraa, Haama, Radio Maldives, TVM, VTV and DhiTV were all in the act. Or are you in league with these media?
I for one support Dr Shaheed taking Umar Naseer to Court on this issue. I do, however, express doubt as to the capability of our courts to do anything other than making a simple, logical, (not necessarily legal) on-the-balance-of-the-facts decision on this case. I wonder if our Middle Eastern and/or sharia-trained, old guards' judges are capable of grasping such concepts and terms as compensatory and punitive damages, or contemptuous and aggravated damages, etc.
I also wonder if legal precedents have any role in our legal system, as of today. Our legal system is certainly not a common law system, and its not a strict civil law system either. The way i see it, judges see themselves as having a discretion on following precedent or not!
I guess we'll see how it all unfolds...
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