On Jan. 12, a Malaysian appellate court overturned an earlier High Court ruling in favor of Malaysiakini, Malaysia's leading independent news portal, in a defamation case initiated by a politically connected mining operation for remarks at a press conference by opponents of the mine.
Malaysiakini must now pay a crippling RM200,000 in damages and RM150,000 in legal costs, to the Raub Australian Gold Mine (RAGM), financially threatening the publication and raising concerns that the government of Prime Minister Najib Razak is behind the court’s reversal.
The subscription-based website has launched a public campaign seeking contributions to meet the court costs. “Our lawyers will be applying for a stay pending appeal. For that to happen, we need to have the money ready," editor-in-chief Steven Gan said in a statement on the site. And should the stay be not granted, we will have to pay RM350,000 (US$89,000) in the coming weeks. Otherwise, RAGM can take winding-up proceedings against Malaysiakini.”
Neither Gan nor Premesh Chandran, the publisher, would speculate on whether the appellate decision was reversed at the request of the government. However, over the years, the relationship between Putrajaya, the seat of the Malaysian government and the alternative news outlet, the country’s most influential, has been fractious at best, and hostile at worst.
The decision by the Appeal court to reverse the lower court ruling exonerating the news poral has set tongues wagging over whether Najib ordered Malaysia’s notoriously malleable courts to put Malaysiakini out of business prior to what political analyst say may be a tough election for the ruling Barisan Nasional, or national coalition.
Malaysiakini has, since its inception 18 years ago, been a particular thorn in the government’s side, attracting hostility from Najib and members of his cabinet. It has been the frequent target of police intimidation and rallies fomented by forces aligned with the United Malays National Organization, the country’s most powerful political party.
"It is totally unacceptable that journalists can be charged for covering a press conference,” said Daniel Bastard, head of the Asia-Pacific Desk of the press advocacy NGO Reporters Sans Frontières. “The right to information is a fundamental right, and Malaysian authorities must finally take it into account. It is listed as a fundamental right by the United Nations, ASEAN and the Commonwealth -- Malaysia must consider lining up with international standards regarding this matter."
RSF, Bastard said, “demands the Malaysian government to give guarantees concerning the political independence of the court of appeal. It is very worrying to see this trend where first-instance justice decisions concerning press freedom are reversed by the Appeal Court. It gives the impression of a pro-government court whose decisions are politically motivated, and whose ultimate goal is to muzzle whistle-blowers and overly curious journalists."
The case brought by RAGM has its roots in a press conference that Malaysiakini and another website, Free Malaysia Today, (FMT) were invited to cover in Raub, a small town in Pahang state north of Kuala Lumpur.
The use of sodium cyanide, a known toxic chemical, to extract gold from tailings, was alleged to have caused a variety of health problems among the villagers of Bukit Koman, a village near Raub. After Malaysiakini published three news reports and two video clips, on Sept. 5, 2012, RAGM sued the news portal for defamation.
The company said that it had taken all reasonable precautions to ensure the health and safety of the workers and residents, dismissing allegations that sodium cyanide was hazardous to Bukit Koman residents and arguing that "unsubstantiated and baseless allegations" had confused the villagers and protesters.
RAGM’s beneficial owner is said to be Peninsular Gold, whose chairman and main shareholder is a politically well-connected Malaysian capitalist, Andrew Kam Tai Yeow. Kam was secretary-general of the Malaysian Chinese Association, the ethnic Chinese political party in the Barisan Nasional or ruling national coalition in the 1960s. Furthermore, RAGM enjoyed preferential tax status. It has since ceased operations and started liquidation proceedings.
In 2016, the High Court dismissed RAGM's suit and said it had failed to prove malice. Eight months later, the appellate court overturned the High Court ruling and said that Malaysiakini's defense of its reportage didn’t hold up.
"The settlement offered by RAGM's lawyer, Cecil Abraham, and the gold mine, to FMT required only an apology, but when it came to Malaysiakini, they wanted an apology and money," said a source who declined to be named. "During the court hearing, [Abraham]s and the gold mine used FMT's apology against Malaysiakini. They claimed that FMT had apologized, but not Malaysiakini, and therefore Malaysiakini was being indolent and irresponsible.
"RAGM's lawyers failed to mention that they had demanded both an apology and a huge sum in damages from Malaysiakini. Clearly, the action by Cecil and the gold mine was to bleed the paper."
A year after the protest march, three individuals who had led the rally and were also members of the Ban Cyanide Action Group (BCAC) were sued for defamation, by RAGM.
They were the chairman, Wong Kim Hoong, vice-chairman, Hue Shieh Lee, and secretary, Hue Fui How. RAGM claimed that the three had defamed them through their statements in two news articles, which both Malaysiakini and FMT had published.
When Wong and Hue Fui How apologized to RAGM in open court, the company withdrew its suit. Hue Shieh Lee elected to continue her legal battle, and in 2016, the High Court ruled that RAGM had failed to prove that her statement against the gold mine, was a malicious falsehood.
"It is difficult for RSF to accuse the Court of Appeal of issuing a judgment to prevent the villagers from demanding compensation for their damaged health,” said RSF’s representative Bastard. “However, the facts are clear: villagers will think twice before asking for compensation. This is a crude example of how violations of press freedom can affect every aspect of every society. This is why RSF firmly condemns the judgment by the Court of Appeal and shows its full support to Malaysiakini reporters, who were just trying to do their work - as the High Court recognized in the first instance."
Villagers, he said, “can let independent local and foreign journalists investigate on their damaged health, so that awareness can be raised around their case."
There are three strands to this story. The harassment of Malaysiakini is not just an attack on press freedom. Its punishment is also a warning to other newspapers to tread warily, when reporting on Najib and UMNO.
The Appeal court verdict is also a means of intimidating the general public. Those who dare to protest an injustice, or the effects of pollution in their locality, or corruption, or become a whistle-blower, will find themselves subject to a lawsuit, with substantial costs, in addition to incarceration.
As Malaysians go to the polls this year, they know that a free press, which can report without fear or favor, is a fundamental requirement for democracy; but this is the least of Najib's concerns.
Sarawak Report's editor, Clare Rewcastle-Brown, in an article titled, "Without A Free Media Malaysia Will Slide Backwards Fast,", said "The difference between being a modern, progressive country and a tin-pot regime, where potential investors fear they cannot rely on the rule of law, can be quantified by the extent to which there is a free media and a government that can tolerate criticism.
"If Malaysia starts to use the courts to close down media that is doing its job, and airing the grievances and concerns of the people, then the world will start to recognize it as a wild country which is only suitable for risk takers and resource-grabbers who are willing to risk losing their investment. The rest will steer clear. That would be a tragedy for a country which has made so much progress and could have a great future".
RSF's Bastard said, "Intimidation of journalists, humiliation, harassment and denial of access to information are common practices amongst government officials around the world who want to muzzle fearless journalists.
"Malaysiakini is recognized as an independent news outlet which doesn't let its editorial line to be dictated by the government. This is precisely what is press freedom.
"Denouncing powerful people when it is necessary and legitimate in a report should not lead to reprisals. This is also totally unacceptable. And this is all the truer in an electoral context."
Najib has learned from the previous general-election that he must tie-up many loose ends, before the country's 14th General Election (GE-14), which must be called by August. Gagging Malaysiakini is perhaps one of those "loose ends."