Justice Served, Garnished with Hope

Irene wins libel suit, awarded RM200,000

Beh Lih Yi
Oct 26, 07 1:01pm

Migrant-labour activist Irene Fernandez won her defamation suit against Malay-language daily Utusan Malaysia at the Kuala Lumpur High Court today and was awarded RM200,000 in damages.

“I am of the opinion that the article was not a piece of responsible journalism,” justice Tee Ah Sing said in concluding a 104-page judgment that took close to two hours to read out.

The judge rejected the defence put forward by the defendants’ counsel, including that the article was written with justification, fair comment and qualified privilege.

The judgment was greeted with applause from the public gallery, which include a full force of staff from the Tenaganita, which Fernandez heads.

Also present were her sister Aegile and regional migrant group Caram-Asia regional coordinator Cynthia Gabriel.

As soon as the court adjourned, Fernandez, 61 - walking with the aid of a cane - went up to hug one of her lawyers, M Moganambal (photo, right), and both broke into tears of joy.



The decision came 11 years after she filed the suit against the two defendants - Umno-owned Utusan Malaysia and its writer, Johardy Ibrahim - over an article published on Sept 20, 1995.

The article claimed that Fernandez had failed to cooperate with the police in their investigation into allegations in a memorandum.

At a press conference in August 1995, Fernandez had revealed allegations of alleged torture and deaths in Malaysian detention camps for illegal immigrants. This has led to a police investigation against her for spreading "false news".

In the suit, Fernandez had argued that the article was written with malice and that its meaning was that she was deliberately evading the police, was insincere and lacked integrity.

The article has also portrayed her as a disloyal citizen and cited her for treason for tarnishing the country’s image by bringing up these issues.

Defence rejected

In its defence, Utusan Malaysia denied defaming her, stating that the article was based on facts.

However, in rejecting this today, Justice Tee ruled that the article was filled with a “tone of sensation” and found that there was no attempt made to seek comment from Fernandez.

“The article has serious allegations of dishonesty and lack of integrity. The plaintiff (Fernandez) said she suffered adverse consequences because of the publication of the article and the conduct of the defendants,” he said.

“From the time of libel to the verdict, the defendants did not attempt to retract the libel and verify the truth before or after publishing the article. (There was also) absence and refusal of correction, retraction and apology despite the plaintiff’s demand.”

In assessing damages, the judge - who has presided over the three-year case since November 2004 - acknowledged that Fernandez is a “well-known human rights activist” for her work both domestically and internationally.

He then awarded damages amounting to RM200,000 with costs and interest.

Apart from Moganambal, Fernandez was also represented by Malik Imtiaz Sarwar, while Mubashir Mansor and Trevor Padasian from law firm Skrine & Co appeared for the defendants.

Mubashir told Malaysiakini he would wait for his client’s instruction as to whether to file an appeal.

Utusan Group senior manager (legal/company secretary) Sharina Saidon was also present.

Outside the courtroom, a jovial Fernandez said she was “really, really happy and feel vindicated”.

“I’m one for freedom of expression, but in that freedom of expression, you have to be responsible in your writing,” she told reporters.

“I am glad he recognised my activism and our work at Tenaganita, a struggle that we go through each day to make a difference in the life of the most oppressed community in the country.”

On the quantum of damages, Fernandez pledged to plough this back to the community through Tenaganita programmes.

“The quantum is not important, whatever we receive will go back to the community,” she said.

Appeal date pending

Despite her victory, Fernandez remains convicted under the Printing Presses and Publications Act for maliciously publishing false news on the alleged death and tortures in the detention camps.

Fernandez, who was convicted in 2003 but granted a stay of execution from her one-year imprisonment, has since appealed the decision in the high court.

Due to her criminal conviction, Fernandez - who is also PKR supreme council member - was barred from contesting in the last general election in 2004.

Asked about the progress of the case, she said she was waiting for a hearing date to be fixed.

“I hope that my appeal will be brought forward and that can be heard as well. I believe justice will also be done,” she remarked.

She hoped her appeal would be heard in time for her to have the opportunity to contest the coming general election. Fernandez had previously run for the Subang parliamentary seat, but lost.

Malik said the judgment, was the “clearest” to date on what is deemed responsible journalism and stressed the suit was filed to promote press freedom, and not to suppress it.


**Taken from www.malaysiakini.com