Defamation By Decree

On Saturday, the Justice Ministry’s Aisha Shujune, announced defamation regulations in the Maldives were to be changed from January 1, 2007, to make it a civil offence with maximum damages set at Rf.1 million.

The next day, after a wave of complaint, Information Minister, Mohamed Nasheed, announced the changes had been ‘parked’.

Then yesterday, in a media briefing, the Information Minister, the Justice Minister, Mohamed Jameel and the Attorney General, Hassan Saeed, turned out to reaffirm that the changes will take place.

The new regulations are to be instituted by ministerial decree, without going through parliament.

This means from next year, breach of defamation regulations will carry a maximum fine of Rf.1 million (US$ 78 125) for “meaningful loss,” and will no longer incur a banishment sentence. There will also be fines for “material loss,” where a claimant can ask for compensation for income lost as a result of damage to his reputation or “honour”.

The new restrictions will be imposed retrospectively, to be applicable to anything communicated since September 1, 2006, leaving many journalists open to lawsuits for regulations which had not existed in the same form at the time, and which they would not have known about at the time.

The double u-turn comes after this website’s sister newspaper, Minivan Daily, lodged a complaint with the Human Rights Commission of the Maldives regarding the changes. “It is completely in violation of due process,” says senior staff member, Nazim Sattar.

There are fears this may spark a fresh round of litigation against various newspapers and magazines. Minivan is seriously concerned that it will become subject to retrospective defamation lawsuits filed by government ministers, though in private conversation they assure the company that this will not be the case.

Many other journalists are known to be concerned about the changes, but in conversation with Minivan News have been reluctant to comment until they see the proposals in print. The government has promised to furnish journalists with the plans in writing some time next week.

“Firstly…It’s a shame and it’s dangerous to create such a regulatory framework without the legal backing, and secondly – the fact that four months have been advanced to the implementation date – that is a signal that it is politically motivated. If they were sincere, then they shouldn’t have done that,” said Ibrahim Hussein Zaki, Acting President of the opposition Maldivian Democratic Party (MDP).

There is also the big issue of the absence of any Freedom of Information legislation to protect journalists or politicians. Ministers have said they will try and pass those proposals in a similar method, through by-passing parliament, but are making no promises.

The definition of the offence will also seemingly be changed, and officials read out the new version to the assembled media on Saturday. It was largely based on the new Defamation Bill.

Translated by Minivan, it says defamation will be committed: “if the honour or reputation of such person alive or dead, or his family member is compromised due to what had been said about him; or if respect or designation obtained by him in his business or work or vocation related to him is compromised; or because of what had been said, if the defamed encounters reluctance by people to deal with him, or refusal to deal with him; or if he encounters a change in the way people showed respect to him, or if people showed dislike or hatred towards him.”

“Defamatory language can be expressed directly or indirectly or metaphorically,” the draft legislation reads.

Defamation will also be deemed to have taken place: “if something defamatory is attributed or thought or understood towards someone by what is spoken by a person, or by writing, or announced aloud or by words let loose, or by indication or signal or movement.”

A London based freedom of expression NGO, Article 19, has described the new Defamation Bill as “vague”, “confusing”, “internally inconsistent”, and “poorly drafted.”

In its report on the Bill, it said it is: “concerned that the bill does not protect journalists from defamation even if the information they report is factually correct. According to the bill, not only does a journalist’s article have to be truthful, it also has to contribute to ‘social harmony.’

Proof of the truth of any impugned statements should fully absolve defamation defendants of any liability in relation to an allegation of harm to reputation. This is recognised in many countries around the world and reflects the basic principle that no one has the right to defend a reputation they do not deserve. If the matter complained of is true, the plaintiff has no right to claim that it should not be publicized,” Article 19 states.

The NGO also takes issue with the notion of “honour” which is raised in the bill, saying it is: “a subjective notion that goes well beyond the idea of reputation, which is the esteem in which other members of society hold a person. If restrictions on freedom of expression are based on subjective notions, they will inevitably fail.”

The proposed changes come only days after the Attorney General, Hassan Saeed, complained to an assembled audience of ministers and diplomats that most of the systemic reform in the Maldives had been made by presidential decree, rather than through parliament.

That speech was deemed too controversial for the transcript to be released to the press.

Neither the Information Minister, nor the Justice Minister nor the Attorney General have answered calls from Minivan News for comment.

Journalists are now citing the following concerns about the regulation changes:

1. The media was not given a written copy of the proposed changes to study and reflect upon.
2. The compensation of Rf.1m for a meaningful loss, as opposed to material loss, is bigger than blood money for killing someone, which is Rf.100 000. (Under Islamic law, blood money can be paid to the family of a murdered person by the killer to absolve him of guilt, only if the family agree to forgive him)
3. The legality of suing someone retrospectively, four months after the alleged offence, under a new regulation that was not in force at the time is uncertain.
4. The Freedom of Information Act, which would clear up many legal loopholes and add a degree of protection to journalists, has not yet been passed.
5. The judiciary is not yet institutionally independent.
6. Newspaper vendors and printers are also implicated in defamation.
7. The absence of a mechanism for the judge to decide whether the author of any alleged defamation had attempted to check the facts and find the truth.
8. The government has so far failed to explain its reasons for making the regulation applicable for 4 months past.
9. The regulation appears contradictory to the principles of the reform bills in the Majlis.
10. The changes offer no immunity to journalists.
11. There has been minimal consultation and study with journalists and politicians regarding this legislation and their rights.

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