May 21st, 2011 by Hafiz Noor Shams
Utusan Malaysia recently alleged that Malaysian Christian heads were conspiring to make Christianity the official religion of Malaysia. The conservative Malay daily cited two blogs of questionable credibility to back its front-page report. For a society highly conscious of ethnicity and religion issues, the report caused uproar and tension between various communities.
Assuming the allegation is false which is likely the case, should action be taken against Utusan Malaysia for reporting it and in effect, spreading falsehood?
Our incentive system is imperfect to say the least. It is not at all surprising to have somebody spreading falsehood, lying or deceiving someone else to get what he or she wants in general. To complicate the matter, those acts might not by wrong all the times. There are times when those acts might be necessary to protect the innocents.
Even when those acts are wrong, unilateral public action through state authority might be out of the question with the principle of free speech in place, along with other typical individual rights.
Individual rights do not include the legitimization of fraud. Any action based on lies and falsehood that adversely affects individual rights cannot be condoned by the state or any authority invested with the powers to protect individual rights. It just cannot be let go off the hook.
One example is this: in a transaction, one party lies about the state of a good for sale to a person. If the person bought the good while supplied with false information, then the lying seller has obtained the money wrongly, with money being a private property of the purchaser. The right to private property is an individual right and the transaction based on deceit violates that right. The lying seller has to be punished by the state – unilaterally – since the prime rationale of the establishment of the state is the protection of individual rights according. The punishment is important not just for the sake of principle, but also for a very pragmatic reason. It is imposes a cost on such act and so discourages such fraud from recurring in the future.
Within the context of Utusan Malaysia and its recent controversial report, was there any violation of rights?
I cannot answer it in the affirmative. Therefore, I cannot to support unilateral state action against Utusan Malaysia. The best I can come up with is that the falsehood affects reputation. Yet, individual rights do not include reputation.
This of course does not mean individuals involved in the reporting – meaning the one reported involved the conspiracy – cannot seek redress against the Malay daily. Conflicts between private parties have always happened and a trustworthy third party can and has always been appointed to resolve the conflicts. The third party here is usually the state. The third party’s judgment then is enforced to resolve the conflict as civil as possible.
In the case of interest, the group accused by the Malay daily can bring their grouse to the courts. If Utusan Malaysia did spread falsehood and that the falsehood adversely affected the reputation of the group, then the daily should be compelled to compensate the group or be fined. The fate of the two bloggers should be the same as the Malay daily.
I like this route the best because it is clean. It makes the issue as a conflict between two private parties and makes the concern of unilateral state action against Utusan Malaysia merely academic if indeed Utusan Malaysia did spread falsehood (which, again, I do not doubt that is the case).
By making it private, it does not mean that there is no public interest in the case. There is but it is hard if not impossible to account for that interest and its very public effect without resorting to discretion.
If unilateral state action has to be taken – which I will contest its legitimacy – there may be a mechanism for that. Robert Nozick’s Anarchy, State and Utopia may have a mechanism that can be modified to justify unilateral state action against Utusan Malaysia. Be warned that I am taking the idea in a very restricted sense. Nozick is concerned with a much larger issue than that which I am focusing on now.
Early in the book, Nozick demonstrates how various insurance and compensation arrangements will address threats and actual transgressions of rights. Insurance and compensation arrangements here are simply different terms used for protection provided by an entity, which can be the state, a private security firm, a gangster group or other entities capable of provide that service. Meanwhile, threat is not simply some kind of warning or a menacing declaration that something will be done if something else is not done. Rather, it is the possibility of something bad happening. The chances of a pedestrian being hit accidentally by a car is one of such threats. The chances of a person makes good of his threat to break your leg is another example of such threats.
Nozick describes how a general open threat creates fear among the threatened. Depending on the credibility of threats and the level as well as the spread of fear the threats create, it will disrupt day-to-day activities of the person or even the society. In order words, there are costs imposed on society by the threats, regardless of realization of the threats.
I think this parallels concerns regarding lies and falsehood. It gives the qualification why some lies and falsehood should be punished. When lies and falsehood creates widespread public anxiety, then there is a case for unilateral state punishment. Under this line of thinking, the priority is fear minimization, or in the parlance of Malaysian political discourse, sedition or incitation of hatred. In the end, Utusan Malaysia clearly must be punished, if this method is adopted.
The question is how widespread before punitive unilateral state action should be taken?
This may require some kind of discretionary powers, which like any discretionary powers, are open to abuse.
The need of discretion is one reason why I do not like this method, on top of the fact it does not follow from the first principle aimed at the protection of individual rights.
Discretion tends to create dissatisfactory judgment. It will inevitably be inconsistent and in the end, ruin the reputation of the third party wielding the power to punish. Discretionary powers will lead to abuse.
The wielding and the exercise of the discretionary powers have caused troubles in the past. Some newspapers have been punished for publishing controversial material while others have been let go. Indeed, Utusan Malaysia has been let go off the hook by the government despite its controversial report of unverified truth. If reported by other newspapers less friendly to the government, that newspapers would have been punished.
So, long story short, no to unilateral state action against Utusan Malaysia but yes to making the case a private conflict between two parties involved.