Defamation from common law and shari’ah perspective: the convergence and divergence

• Main Authors: Sardar Baig, Farheen Baig, Ali Mohamed, Ashgar Ali
• Other Authors: Trakic, Adnan
• Format: Book Chapter
• Language: English
• Published: De Gruyter 2022
• Subjects: BPK36 Islamic law (General); K Law (General)
• Online Access: http://irep.iium.edu.my/103908/1/103908_Defamation%20from%20common%20law%20and%20shari%E2%80%99ah%20perspective.pdf; http://irep.iium.edu.my/103908/; https://www.degruyter.com/document/doi/10.1515/9783110766707-007/html
• Institution: Universiti Islam Antarabangsa Malaysia

Freedom of speech and expression is a valuable and cherished right possessed by a citizen, and this right is enshrined in article 10(1)(a) of the Federal Constitution (Malaysia). However, no person is entitled under the guise of freedom of speech and expression to make irresponsible accusations against another. To allow absolute and unfettered freedom to defame another in the name of freedom of speech and expression would only allow lawlessness to prevail. Hence, the domestic laws on defamation, sedition, and offensive language impose reasonable restrictions on the citizen’s right to freedom of speech and expression in the interest of public order, security of the state, decency or morality, and impartial justice. The statutes relating to the above are the Defamation Act 1957 (Malaysia), Sedition Act 1948 (Malaysia), Printing Presses and Publications Act 1984 (Malaysia), and the Penal Code (Malaysia), in particular, section 499. Where a defendant recklessly defames the plaintiff, the plaintiff has a right to protect his or her reputation, and this includes filing a defamation action in tort against the defendant unless the defendant can establish any of the defences available in a defamation action. The burden is on the plaintiff, who must show not only that the impugned statements or words were defamatory but also that the words complained of referred to the plaintiff and that the words had been published. In Islam, freedom of expression or speech can be considered as an essential interest (masalih daruriyah) in maintaining the stability of the socio-political order. As such, this freedom should be exercised according to the guidelines and limitations as mentioned under the protection of five principles of Shariah (maqasid as-shariah), i.e. protection of faith, life, intellect, lineage, and property. Freedom of expression or speech is not a matter of privilege in Islam, but it is one of the fundamental rights which is respected, revered, and protected by Islamic law. The term “freedom of opinion” refers to the right of the individual to express his or her own opinion as long as he or she does not violate the Islamic teachings, as contained in the Quran and Prophetic teachings. In light of the above, this chapter discusses the law on defamation from the conventional and Islamic law to find a common thread between the two systems, particularly in relation to the remedy and mechanism for settlement of such disputes. At this juncture, it is worthwhile noting that the main divergence between civil and Shariah is that when a person defames another and gets away with it, he will nevertheless be accountable for his actions in the next life. At common law, the matter ends during the lifetime of the defamer. However, divine laws await the defamer in the hereafter for his final judgment. It would be emphasised that both systems perceive this act as weighty and of profound significance.