Sunday, June 12, 2016

Bukit Koman villager, HR Defender Hue Shieh Lee, wins in gold mine's defamation suit?

Corporations and the rich sometimes retaliate against Human Rights Defenders and those with a differing opinion by filing court actions like Defamation Suits. Because of the cost of such legal battles, and the availability of speedy interim orders like 'gag orders', the ordinary person or communities or HR Defenders even media that publish the views of the 'small person' can easily be 'delayed' or removed from the battle field for 'human rights'. Even governments use the law to suppress criticism and alternative opinions.

Frankly, I believe that we need laws that will prevent corporations and the rich from using such defamation actions and legal proceedings to suppress struggles for human rights and/or alternatives.

In Malaysia, one such case was the case involving local community and HR Defenders campaigning against a gold mining company in Malaysia. Their concern was that the mining operations was affecting the health of the community, and possibly also the environment. The mining company denied this. In any event, it is not important as to was wrong or who was right - but the capacity and the freedom to struggle for rights. The mining company, in this case, retaliated by filing defamation suits...

By going against media outlets that gave space to voice and views of these communities and human rights defenders through defamation suits and other legal action, the alleged perpetrator  can and may bring about the effect of 'media playing safe' - and hence struggles of HR Defenders may find less space in the media. It is really not the winning that matters, but the crippling cost of legal battles and time lost that is scary...for those who file such suits. [How many media reports have you seen that reports the allegation of workers against their employer company? Even if there is a report, it maybe of interest to note that many of the reports do not mention the names of the company and provide vague descriptions of the company - Is it a worry about RETALIATION from these companies/corporation?]

In 2013, Raub Australian Gold Mining (RAGM), initiated defamation suits against 3 members of the BCAC(Ban Cyanide Action Group), which had been campaigning against the company's gold mine near their village in Bukit Koman, Raub, Pahang. In their action, the mining company was demanding damages in the sum of over RM4 million (note that Malaysia's minimum wage is RM900). Well legal charges and fees could be about RM50-100k at the very least - and, of course there is also the risk of COST that is payable for each and every application fought and lost, besides the final cost at the end of the suit.

Well, in the RAGM case/s, 2 of the members of the BCAC, conceded defeat - willing to apologize in open court. But, really was it a real defeat, or rather the only way out to avoid the loss of time and money that lengthy legal battles bring with them, and of course the possibility of having to pay millions if they lose. Now may of the community leaders or HR Defenders are ordinary persons from the lower income or lower middle income group...and they just cannot afford to fight in the courts..

If such ability to use the courts against HR Defenders continue to be available to alleged perpetrators of human rights, it will have a deterrent effect to those who want to claim justice and human rights. Hence, injustice and human rights violations will increase. We need to think about this, and consider whether we need laws to protect HR Defenders - to maybe disallow alleged perpetrators the ability to use the courts in this way... 

Bukit Koman villager wins in gold mine's defamation suit

Published     Updated
A Bukit Koman villager has won her case against the defamation suit filed by Raub Australian Gold Mining (RAGM) against the Ban Cyanide Action Group (BCAC).

The High Court in Kuala Lumpur ruled today that RAGM failed to prove that BCAC vice-chairperson Hue Shieh Lee's statement against the gold mine was of malicious falsehood.

In handing out the 45-page judgment, High Court judge Yeoh Wee Siam also ordered the plaintiff to pay RM20,000 in costs to Shieh Lee, subject to payment of an allocatur fee of four percent of the costs.

The plaintiff must establish three elements to prove malicious falsehood in this case, namely:
  1. That the defendant has published about the plaintiff words which are false;
  2. That they were published maliciously; and
  3. That special damage has followed as the direct and natural result of their publication.
"... the plaintiff did not prove that the survey results read out by the defendant are false because the plaintiff failed to call any, or all of the 383 residents, to prove that they did not suffer from any health problems as a result of the plaintiff's use of cyanide in its operation of the gold mine.

"... the plaintiff did not call the reporter, who purportedly interviewed the defendant, as a witness to prove that the defendant had uttered or published those words.

"It follows that the issue whether the words are false does not arise," read the judgement.

Shieh Lee (photo, centre) only read out the results based on the survey conducted by the BCAC interviewers, Justice Yeoh pointed out.

As Shieh Lee was the vice-chairperson of BCAC, an interest group concerned about the health of the Bukit Koman residents, the judge continued, she must have read out the survey results by virtue of her membership and position in the BCAC.

"By the defendant's act of reading out the survey results at the press conference, it does not prove that the defendant had published those results maliciously against the plaintiff," she said.

Hence, Justice Yeoh concluded, the plaintiff has failed to establish malicious falsehood in the case, and as such, the claim ought to be dismissed.

Counsels for RAGM were Sunil Abraham and Esther Yee, while lawyers William Foo and Tan Li Min acted for Shieh Lee.

Finally back to normal life

Later, a smiling Shieh Lee who was clad in green anti-cyanide T-shirt that read 'Life above Profit', said finally she felt a great sense of relief.

"The judgement is too good for us. The burden has finally been taken away from my shoulders. (I) can finally go back to my normal life.

"Previously, I went here and there for this case, worrying how we and the society would be affected. Finally, I don't have to worry anymore," she said.

Earlier at 5.30am, about 40 Bukit Koman residents started travelling from Raub to Kuala Lumpur to show moral support for Shieh Lee.

Shieh Lee's husband, father and sister were also in the court rooting for her.

After hearing the good news from the judge, Shieh Lee and supporters gathered outside the court and celebrated by chanting "Ban cyanide".

The judgment from Justice Yeoh also came with some interesting facts which has made this case rather unique.

As it transpired, Shieh Lee was precluded from calling her witnesses for her defence because she failed to file the witness statements and list of exhibits according to the time ordered by the court.

"The excuse of learned counsel for the defendant was that they were hoping to settle the matter through mediation, but the defendant did not accept the offer made by the plaintiff. That is why the defendant did not file the witness statements and the list of exhibits.

"The court, however, could not condone the defendant's lackadaisical conduct of her case. When mediation failed, the defendant should know better that she must comply with the court's directions," Justice Yeoh said in her reasoning.

The judge also gave her view in the event that the Court of Appeal decides that she has erred in holding that the plaintiff has failed to prove all the elements of defamation.

"I do not think that total damages of RM4,500,000 ought to be granted to the plaintiff as prayed. To my mind, the claim for such a sum is totally unreasonable, disproportionate to, and does not commensurate with the defendant's mere act of reading out the survey results at a press conference in the form of the first set of words complained of.

"If at all any damages should be awarded to the plaintiff against the defendant, it is my considered opinion that it should be a global sum of RM30,000 for exemplary damages, aggravated damages and general damages with the interest as prayed for in regards to the first set of words complained of. This is to serve as a deterrent to the defendant so that she will not repeat her action," said Justice Yeoh.

Shieh Lee opted to fight her case

RAGM in 2013 initiated defamation suits against three members of the BCAC, which has been campaigning against the company's gold mine near their village in Bukit Koman, Raub, Pahang.

Other than Sheih Lee, the other two suits involved BCAC's chairperson Wong Kim Hoong and secretary Hue Fui How. Subsequently, Wong and Fui How apologised in open court to RAGM over their statements and RAGM withdrew its suit against the duo.

However, Shieh Lee opted to fight her case in court.

RGAM, which also filed a defamation suit against Malaysiakini, has insisted that allegations that sodium cyanide used for gold extraction was hazardous to Bukit Koman residents are unsubstantiated.

The High Court will deliver its decision on RAGM's suit against Malaysiakini next Monday. - Malaysiakini, 17/5/2016

No comments: