WAS ANWAR DEFAMED?

QUESTION

Was Anwar Ibrahim really defamed in an article purportedly written by Rose Ismail former New Straits Times (NST) Editor and journalist?

Did the NST in publishing the offending article also carry liability for the alleged defamation of Anwar Ibrahim?

Was the original author of the offending article on Anwar and his links to US lobbyists telling the truth?: and

If so why was the original author and the publication not pursued by Anwar in defamation?

RESPONSE

In order to adequately answer these questions in an informed way one needs to examine amongst other things, the definitions of defamation in the context of the common law from where the offence is said to originate,then examine and analyse that definition in its Malaysian context under which the NST and Rose Ismail were found to have defamed Anwar Ibrahim.

BACKGROUND

Defamation has no definition under the relevant Act in Malaysian law. Therefore one has to expect that the courts in Malaysia informed theselves by relying on the common law, borrowing from it the relevant definitions necessary to decide what constitutes defamation in the Malaysian context.

In analysing Anwar’s case (defamation) one cannot help but notice the difficulties of dealing with such a novel area of the law in a place like Malaysia, where lawyers are left to interpreting a piece of legislation that has been left virtually redundant since Malaysia’s independence from Britain.

With respect to this offending article the centre of the alleged (now proved) defamation which Rose Ismail sourced from “The New Republic”, a  reliable international journal, it would appear that the content of both her writings and the original article was fair comment to the extent of what was said about Anwar’s links to a US Lobbyist.

Ismail was merely repeating what was said by the original author whose original work appears not to be defamatory to Anwar by his inaction against the publication and its author.

OMISSIONS BY THE NST DEFENCE TEAM

A critical omission by the NST’s lawyers resulting in the unfavourable judgement against the NST was their failure to attack and to controvert the assertion of Anwar’s claim to having been defamed in the article.

The NST’s lawyers failed to shift the burden of proof on Anwar to prove that the words “US lobbyist” in connexion to Anwar necessarily carries with it the the very wide imputation and inferences that Anwar draws from it. These being that he Anwar is therefore by implication dishonest, a US agent and all of the other colourable claims Anwar put before the court in support of his claim.

INTRIGUE-WHEN IS A DEFAMATION NOT A DEFAMATION?

“The New Republic”   that journal from which Ismail sourced her material is a widely read and respected as a  credible international journal on public affairs. It has thus far avoided the wrath of Anwar.

No one knows why. But there is plenty of speculation as to why Anwar has chosen to attack at the weakest line of resistance in the public interest built up against him.

These are the NST and Ismail. Anwar’s reaction to the article nothing new in his well established pattern of attracting the public spotlight on himself and his controversial person.

Interestingly a reasonable observer will be compelled to ask the question as to why Anwar has never raised the allegation of defamation against other sources who have published similar controversial material about his links to the US lobbyist particularly, The New Republic.

Nor has anyone yet including the courts in Malaysia questioned why Anwar has failed to sue any of the other publications that have carried similar allegations more direct about his sinister connections to a discredited Neo Con group in Washington.

Has Anwar filed any defamation writs in defamation for instance against the The New Republic from where Rose Ismail is quoted as having sourced her material on the offending article?

If the offending article by the NST is indeed defamatory then the NST and Rose Ismail could only be guilty of repeating a defamation published primarily by the New Republic (although there are others). And neither Ismail nor the NST ought to have been properly made principal defendant in a case prosecuted by Anwar for an ambit $100 million claim in punitive damages for being defamed (if he was).

If in Anwar’s view the New Republic is not carrying a defamation against him (by his not suing them), then Rose Ismail and the NST cannot also be guilty of defamation because they are necessarily in the same position vis a vis Anwar as The New Republic.

An intriguing and vital question that begs an answer on the point is this.

Why has Anwar not pursued the authors of the original story in the US courts or in Malaysia for defamation? by his failure to sue the authors of the original story is Anwar admitting to the truth of The New Republic’s assertions about him?

Where does the definition of defamation begin and where does it end in the Malaysian context and in Anwar’s mind?

If The New Republic is not guilty of defamation then, logically neither Ismail nor the NST can be guilty of repeating that defamation because the defamation does not exist. What was reported in the NST was fundamentally material from other sources.

The NST was not the primary source for the article. Unless Anwar could prove that the original material was so altered by NST or Ismail to the extent it could not have been properly identified by or attributed to the author of the original article, there could have been no defamation. So what did the court really find if it did find anything at all?

ROSE’S FAILURE A PALUSIBLE DEFENCE?

What Rose Ismail failed to do and ought to have done according to her testimony tendered in court, was to have sought and solicited comments from Anwar to give her article balance.

From the little we know that may not have been achieved. But there is a defence and a valid reason for her failure to do so. Anwar was in jail at the time Rose is said to have tried to obtain an explanation form Anwar.

DOES  ANWAR HAVE A GOOD REPUTATION TO DEFEND?

Central to the issue of defamation is this. That  the complainant’s ( Anwar’s) has a ‘Good Reputation’ that was or is capable of being destroyed or besmirched by the defamation.

Now what exactly was Anwar defending? his Good Reputation? For Anwar to have been defamed he must have been able to establish and to convince the court that he has a Good Reputation in society to defend, and that Good Reputation was sullied or injured by Ismail’s and or the NST’s  ‘defamation’ of him.

In other words the injury to his Good Reputation was inflicted or likely to be caused by publication of something untrue that would cause him to be ridiculed or to cause members of society to shun him because of the defamation.

That consequence would be Anwar’s story to the courts in support of his claim. It did not. On balance and whether one likes it or not, that Good Reputation was not and is not available to Anwar at least in Malaysia at the time of the complaint by him.

This  follows from the fall out of  his widely publicised trials, his criminal convictions and the reputation he earned as a consequence as published locally and in the world media in the first place.

Then there is the issue of subsequent and prevailing allegations of a similar nature being levelled against him for which he is again likely to be faced with a very public trial soon. Out of all of this comes the element of suspicion of guilt at least whether or not the facts can or will be proved.

Anwar’s ‘Good Reputation’ was damaged a long time ago and damaged irreparably over and over again, not only by his enemies but by his own conduct.

Again whether or not we like Anwar there is a stain on his reputation and an element of doubt about Anwar’s credibility and his reliability (remember the change of government and the numbers he had to achieve it?) resulting from the public perceptions of him in the context of his immediate past, his convictions, his broken promises, his alleged racist leanings and the current allegations against him before the courts.

Anwar is widely perceived in Malaysia to be bisexual. That of itself carries a stigma of cultural, social and religious dimensions which go against the perception of him being a person of good standing or character worthy of protection or defending in a society as contemporary Malaysia is.

Whether or not the remaining allegations  against Anwar on the issue of sodomy is proven again this time is not at issue here. It is Anwar’s  own peculiar standards of judgement he relies on in his defences in this particular matter against the NST that matters.

He has created the grounds by which the public perception (based on that fiction of the reasonable man) and conclusions they are likely to draw of him from the offending article is likely to demolish his ‘Good Reputation’ he seeks to defend if the decision of the court is to be appealed.

PEOPLE IN GLASS HOUSES

Anwar himself is no stranger to defaming others. His attacks on members of the judiciary and members of parliament have been less than exemplary of a good citizen seeking to protect his ‘Good Reputation’. He has been savage and unrelenting even where he has had no proof to support his allegations against those he considers his enemies.

WHAT DOES ANWAR SAY DEFAMED HIM IN THE ROSE ISMAIL ARTICLE?

Anwar is a public person and as such cannot claim he was unfairly targeted or that in such matters he is entitled to his privacy. We are unable to obtain any material thaat suggests he may have claimed to have had his priivacy as an individual breached. Here is what’s perplexing about his claim to having been defamed by Rose Ismail.

Associating Anwar with a US lobbyist being defamatory and the very wide inferences he draws from that link to himself and his reputation as a result of the offending article is what baffles many. If it is the case and if it is to be believed that an association with a US lobbyist  is defamatory of him, then Anwar by implication of what he claims places himself and his reputation squarely in the same camp as that of Kim Ill Sung of North Korea, Robert Mugabe, Aymen Al Zawari and Osama Bin Laden amongst a host of other US haters who would all find such an association or inference made of them to be defamatory of them and their reputations.

The latter group would rightfully as may be assumed, consider any references to them being associated with the US let alone US Lobbyists as being defamatory, insulting or blasphemous. But certainly not Anwar unless Anwar is pointing to something more sinister and latent about his politics we do not know about.

WHAT COULD POSSIBLY BE DEFAMATORY ABOUT THE WORDS US LOBBYIST?

How therefore could Anwar (an Amerophyle) consider such association impugned of him to be defamatory? What part of the words US lobbyist does he Anwar consider harmful to his reputation? Surely he must mean the singular word US. Because the word lobbyist on its own is neither harmful nor has it any other meaning that can be used in the pejorative enjoying common usage either as slang or colloqualism  as to justify the very wide inferences he drew from the Rose Ismail article he says defamed him.

We have read an extract of the Harminder Singh judgement on Anwar’s defamation and find his reasons and judgement ridiculous or at best a manifestation of judicial ignorance and incompetence. But then again that’s the Malaysian judicial system and Anwar’s lawyers like Anwar who have been at the forefront of attacks on the Malaysian judiciary with allegations of corruption directed by none other than Anwar himself cannot claim the benefit of their “good” or “fair” judgements.

The bench in Anwar’s view is incompetent, corrupted and biased.

There are defences against a charge of defamation available at common law. Harminder may not have adequately considered these (and that could also be because the incompetent lawyers had failed to submit such available defences to him to consider).  The truth as a defence and public interest are amongst these defences. They were not raised therefore no considered.

Gopal Raj Kumar