Sub judice is a relic from the days of jury trials, which have been abolished, said veteran investigative reporter R Nadeswaran.

“Sub judice is from an era when we had jury trials. When we had jury trials, you could not write anything because they say that your writing could influence the jury, so to speak.

“We have abolished the jury trials for almost 40 years,” Nadeswaran said during an event titled ‘Can Media and Law Co-Exist?’ in Kuala Lumpur today.

He questioned whether there was a need for sub judice rules to stay in Malaysian statute books.

“I raised the same issue with the attorney-general and he says judges can be intimidated,” he said.

Last year, the Dewan Rakyat speaker Pandikar Amin Mulia did not allow a debate on the United States Department of Justice (DOJ) suit on 1MDB assets in Parliament as he said it could be considered sub judice.

On a separate occasion, Home Minister Ahmad Zahid Zahidi and his deputy Nur Jazlan Mohamed also cited sub judice in declining to comment about the detention of Bersih chief Maria Chin Abdullah under the Security Offences (Special Measures) Act (Sosma) in November last year.

Meanwhile, in the event today, lawyer K Shanmuga gave a presentation on the various defences one can use in a defamation case.

Truth is one of the defences one can use in a defamation case, he said, though it is very difficult to rely on it.

“The problem is, nine times out of 10, you have no way of knowing (whether something is true or not),” he said.

There is also fair comment and qualified privilege, he said.

However, he brought up ‘responsible communication’, which he said is the most interesting defence.

This defence, he explained, came from the Reynolds’ privilege, which originated from a case in the UK that is Reynolds vs Times News Papers Ltd (2001).

“They (the jury) essentially created a new kind of defence for journalists. Our Federal Court has actually expanded it to everybody,” Shanmuga said.

However, there are 10 factors that should be examined when using responsible communication, he said, though it was later decided that these 10 factors are more of a guideline.

He highlighted several of the factors, especially whether comment was sought from the plaintiff and the tone of the article.

“Newspapers can raise queries or urge an investigation. It need not adopt allegations as statements of fact,” he said.

Reportage another fairly new defence

Another fairly new defence for defamation cases is reportage, he said.

It is when someone publishes something but does not adopt it as true or false, he explained.

“The reason it is newsworthy is because it is somebody newsworthy saying those things. The mere fact that they have made the accusation is newsworthy and so you just neutrally report what they said.

“It is quite good because you get this defence even if you don’t satisfy the requirement of verifying the source of information,” he said.

This is as long as you can verify that that particular person made those accusations, he clarified.

Meanwhile, fellow lawyer Sudharsanan Thillainathan spoke about the disclosure of journalistic sources.

He cited the defamation case between Bintulu MP Tiong King Sing and former MCA president Ong Tee Keat, where a journalist was asked to reveal his sources.

When the journalist refused to divulge his sources, the plaintiff applied to compel him to do so, but the judge dismissed the application, he said.

This is the only instance as far as he can remember where this issue has been brought up in court and as of now, the judge’s dismissal still stands.

Meanwhile, Malaysiakini editor-in-chief Steven Gan spoke about how Malaysiakini has managed to flourish for 17 years despite the raids and defamation lawsuits against the news portal.

He said the most important thing is to do “good journalism”, and if you make mistakes, to see how far you can defend yourself.

“Increasingly, you need to have new rules when it comes to online media, the new media. The reportage thing has been great,” he said.

On Nur Jazlan’s claim that Malaysiakini is a very biased news outlet, Gan cited an academic study on news reporting on the 13th general election (13GE) in Malaysia, which studied all articles throughout various media about the elections.

The study had concluded that out of all the news outlets which reported on GE13, Malaysiakini was the most balanced, he said.

During the event, Nadeswaran also spoke on the issue of whistleblowers.

He said whistleblowers should be more discreet and not hold a press conference about lodging a report to Malaysian Anti-Corruption Commission (MACC).

“How is the MACC going to work? There should be an element of surprise.

“Why tell the whole world? If you want to be a whistleblower, then tell the whole world ‘I’m a whistleblower’, then what protection can we give you?” he said.

He also said that he has dealt with many whistleblowers and have noticed that they can generally be put into three categories.

The first is someone who is doing it for financial rewards, the second is someone who is genuinely angry at the system and the third is someone who did not get their share of the loot.

“But generally, there are a lot of people who are angry with the system,” he noted.

The seminar today, which was organised jointly by the Bar Council’s Continuing Professional Development and Malaysiakini, was held to mark World Press Freedom Day on May 3.

It featured various speakers from the legal profession and media industry, who spoke on how Malaysian laws affects our constitutional right to freedom of speech and expression.