Saturday, April 14, 2007

Is the Law failing Mahmood?

Reading Lulu Bahrain’s Minister v. Blogger thread has led me to do thinking and searching. If you don’t have a clue to what the fuss is all about, I recommended Lulu’s legal analysis of the case.

Borrowing from Lulu’s post:

Based on the Press and Publications Law (PPL) & the Penal Code (PC), a libel occurs when all of the following conditions are met:
1. The offender has published a criticism of a person holding a public office which includes slander, unless the criticism is proven to be factual and is related to the claimant's public duties (PPL 72); or

2. The offender has publicly associated a person holding public office with an occurrence that can make him subject to punishment or ridicule (PC 364); AND
3. The offense must have taken place publicly or published on a public forum (PPL 72, PC 364, 365).

Here is how libel reads in the US laws (I’m only using the US here because the information is readily available).
Defamation, Libel and Slander:
Generally speaking, defamation is the issuance of a false statement about another person, which causes that person to suffer harm. Slander involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation. Libel involves the making of defamatory statements in a printed or fixed medium, such as a magazine or newspaper.
Typically, the elements of a cause of action for defamation include:
1.A false and defamatory statement concerning another;
2.The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
3.If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and Damage to the plaintiff.

Public Figures
Under the First Amendment of the United States Constitution, where a public figure attempts to bring an action for defamation, the public figure must prove an additional element: That the statement was made with "actual malice". In translation, that means that the person making the statement knew the statement to be false, or issued the statement with reckless disregard as to its truth. For example, Ariel Sharon sued Time Magazine over allegations of his conduct relating to the massacres at the Sabra and Shatila refugee camps. Although the jury concluded that the Time story included false allegations, they found that Time had not acted with "actual malice" and did not award any damages.

Our good old Bahraini law fails to address one important point: were the statements made in actual malice (hatred, spite)?

And another point becomes glaringly clear, while the Publication and Press Law and the Penal Code seem to protect public figures the American Laws applies to regular people and provides additional requirements to be met for public figures. Moreover, the additional requirement for public figures in the US defamation and libel law places the burden of proof on the public figure him/herself. After all the government official is a public servant with the duty to serve the society the best way he/she are able to.

So what you have here in Wonderland is a law that protects public figures from scrutiny. You cannot criticize a government official, candidate, etc for not doing their job because you will get sued!

In the case of the MP of municipalities, the criticism is valid. Having lived in Riffa this past year or so, and having relatives there, I can testify to the puddles of sewage that decorated the streets. The stream of refuse and what not that would run through the ‘ferjan’. Men walking with their thoubs hiked all the way up to their knees because they could avoid stepping in puddles only for so long. Having to change outfits a couple of times because the minute you step out of the door, you get sewage stuff on your clothes. Kids playing out with rats and cockroaches all around them. Calling the baladeeya (municipality) never helps. The trucks are too busy cleaning richer more privileged areas, making sure not a spot remains while the everyday people are left to sink in refuse. Complaining on the local programs achieves little or nothing.

So given all this, is it fair to assume that the municipality and by extension its MP are not doing their job well? Yet for some reason Mr. MP is offended at such honest criticism. Instead of doing something about the sewage situation, he runs to sue. Yet the great MP is not at all offended by the sewage and rain puddles.

My fellow readers I leave you with this gift.


LuLu said...

gardens great post! I really like the perspective you brought to this issue.. and the comparison you introduced with the US law.
There have been efforts in the past to amend our press law in particular (and the crown prince was involved at some point) but somehow it all died. Bashmi from the previous Shura council tried as well. Unfortunately, our current assembly is just un-interested.

Gardens of Sand said...

Thanks Lulu, this is a gr8 compliment coming from you!

You know when I take a closer look on our laws and constitution, I end up with this overwhelming sense of sadness. Where in other countries the laws and constitution define the citizen's rights, our laws and constitution seem to be designed to limit and silence us.

SoulSearch said...

Laws and in-laws come in all shapes and sizes, somehow they never seem to be compatible!

Check out the book by Malika Ofakir which outlines the shadowy laws that are inline with the wishes of the leadership rather than public interest.


Bahrania said...

If our opposition eventually gets its act together, I think a good form of civil dissent will be to all simultaneously break the press law at the same time. That way the authorities can't point the finger at any one person. Or as anonymous bloggers at least, we should all simultaneously post a statement that reiterates the accusations against this MP (and all MPs in fact) just to show that cornering and silencing Mahmood is not the answer or the solution as it will inflame those they can't get their hands on. Just an idea.

Gardens of Sand said...

Good ideas Bahrania, however our grim reality indicates that our opposition may never get their act together and when they do reach a position where they can have some sort of semi-weak influence or even be able to make statements w/o recriminations, they play coy and engage in stupid squabbles with the other side.

Soul Search, laws and by laws, aint that the truth! Will have to check out the book you recommend.