“He that
fliches from me my good name,
Robs me of
that, which not enriches him,
And makes me
poor indeed.”
William Shakespeare
Dasho Benji
must have taken a few seconds to write the comments. A prominent political
party, Druk Phuensum Tshogpa (DPT) must have taken few seconds to read. Then,
the issue of defamation emerged. DPT feels defamed by the comments. Contrarily,
Dasho Benji feels otherwise. The impacts
of this comment for both parties are hard hitting. DPT dragged defendant in the
Court. Now, it may months before, the dispute is solved. It is going to create
new Bhutanese jurisprudence in the area of law of
defamation owing to so many questions being raised by both the parties.
defamation owing to so many questions being raised by both the parties.
In a way, it
was relief to many Bhutanese media to get such a great of piece of Headline for
them which could upscale their issue and
sale giving some financial relief who were otherwise says are dying lack of
readership. In the process, people are informed of every hearing in a plain
language than legal principles and jargon which most people wouldn't like read
it.
The fact
that Court accepted the petition is a prima facie that there is a case whether
in favour of plaintiff or defendant. The
basic issue raised here is “Whether the comment made by the defendant amounts
to defamation or not.” This case though only
has a single issue but seems to generate so many other issues on rights of both
the parties- the defendant’s right to free speech and expression and
plaintiff’s right to be safe guarded and protected of his honour and
reputation. Since, the case is sub judice I am not here to dwell on who is
right or wrong. Rather, I am just expressing my view on what and how I
see the law of defamation in nutshell and the impacts of this case would have
on Bhutanese jurisprudence on this law.
“The law of
defamation is recognition of an inherent right to every individual to the
preservation of his honour and the esteem in which he is held by society.”
(Divan, M.D. 2006). Every person has right to claim that his reputation be not
disparaged by any defamatory statements be it slander or libel. Among, all
rights, right to preserve his reputation or honour is the most important as
nothing can replace man’s honour or reputation.
Therefore, let me try to put some general idea about defamation from what I know.
Defamation may be defined as "A defamatory statement is a false statement of fact about a living person, corporate entity, or other business unit that tends to injure his or its reputation or the esteem, respect, or goodwill in which the subject is held by a substantial and respectable group of people. (Friedman, Jessica R.)
Therefore, analyzing the definition, to constitute a defamation in general:
My views on defamation in Bhutanese Scenario.
Therefore, let me try to put some general idea about defamation from what I know.
Defamation may be defined as "A defamatory statement is a false statement of fact about a living person, corporate entity, or other business unit that tends to injure his or its reputation or the esteem, respect, or goodwill in which the subject is held by a substantial and respectable group of people. (Friedman, Jessica R.)
Therefore, analyzing the definition, to constitute a defamation in general:
- Defamation can be towards both legal and natural persons.
- There is a publication of the statement orally or in writing.
- The statement was false and defamatory,
- The statement was referred to the plaintiff directly or indirectly
- It is not necessary to know the plaintiff
- It must have caused actual injury to the plaintiff, means the plaintiff’s reputation was lowered in the eyes of the third party.
- Talking between the defendant and plaintiff does not constitute defamation.
- The statement must not be true or must be a fair criticism.
My views on defamation in Bhutanese Scenario.
Freedom of Speech and Expression
are our fundamental rights enshrined in the Constitution under Article 7(2) which states “A Bhutanese citizen shall have the right to freedom of speech, opinion
and expression.” The same
sacred book also empowers the sovereign to limit all fundamental rights through
reasonable restrictions under Article 7 (22) including “rights and freedom of others”
which may also include right to reputation.
Section 317 of Penal Code of Bhutan defined defamation as “A defendant shall be guilty of the offence of defamation, if
the defendant intentionally causes damage to the reputation of another
person or a legal person by communicating false or distorted information
about that person's action, motive, character, or reputation.” Like any other law
of defamation, Section 318 of Penal Code also provides the following as
exception to definition of defamation.
(a) A bonafide expression made
in the public interest;
(b) A criticism of a literary
work or product;
(c) An appeal through lawful
means or in good faith for redressing a grievance;
(d) A bonafide complaint by the
defendant against one’s own superior officer or about an employee serving under
the officer;
(e) A bonafide complaint by or
to an agency or authority of Bhutan to redress a grievance;
(f) A formal report of a
supervisor or superior officer concerning the work or performance of an
employee; or
(g) Instances where the Court,
based on relevant facts and circumstances, considers the statement made to be
reasonable.
If
we look at these two provisions, neither S.317 nor S.318 are crystal clear in
their meaning as they are decorated with many legal jargon and abstract
meanings. These words are neither defined in Penal Code of Bhutan nor any other
statute. It is left to the judiciary to interpret through basic principles of
law, the equality, reasonableness and self-conscience principles validated by
evidences.
Now
the task here is the interpretation of these three provisions, the fundamental
right to freedom of speech and expression, right not to be defamed and
exceptions as to defamation. It’s going
be a herculean task for any court as Bhutan travels on path of democracy and
promises to uphold the true democratic values as wished by our far-sighted
wisdom of a unique Monarch in the world, where power is gifted from throne
through peaceful means which is an unprecedented era in Bhutan and for the
world to see us as example.
If
we float these provisions among the lawyers or even judges, it would bring a
lot of theories and justifications as to its clarity and inference. Proving of
intention and lowering of reputation would not be an easy task for any lawyer
considering the evidence as one of the most crucial elements in determining the
case as to amounts to or not amounts to defamation. This would be further
complicated with the exception clauses using the words such as “bonafide,
public interest, good faith or reasonable statements.”
Now
such a milestone case is in the court, we the citizens especially the lawyers
can expect some sort of clarity upon the pronouncement of the judgement. We are
quite sure that, the Hon’ble court would come up with such a judgement that
would not only define what amount to or not amounts to but also a definition
that would suit the Bhutanese society and bring justice to all the parties for
present and future. After all, society dictates the law and law being a dynamic
in nature must suit the changing times and cope with the societal norms and
laws in place.
Today,
thousands of Bhutanese are active on social media in this era of information bombardment
and is increasingly so rapidly every day including the government which is
working so hard on promoting the use of Information Technology and
Communication including social media. This case would remind all of us, the
social media savvy, of our rights and duties when we write or express our
opinions anonymously or otherwise on any issues not only related to political
parties or politicians but also of the government, our friends, families and
even strangers and individuals in any forum, formal or informal.
At
the end, we all must remember that no one has absolute right including our
fundamental rights guaranteed by our constitution. State has a right to impose
reasonable restrictions on every right given to us. Bhutan has been recognized
as one of the most peaceful nations not only in the region but also on the
global list. It is therefore, imperative that we must keep in our mind to exist
peacefully through peaceful co-existence in the society for whatever the reason
may be.
