Chong sees silver lining in Federal Court ruling

KUCHING: DAP Sarawak chairman Chong Chieng Jen did not see himself on the losing side, despite having his appeal dismissed by the Federal Court on Wednesday which led to a landmark decision that federal and state governments can sue people for defamation.

Instead he viewed it as an opportunity to get answers on the issue of “RM11 billion disappearing into a black hole” concerning the state government when the case proceeds to the High Court for trial.

According to Chong, the case will be mentioned again at the High Court on Oct 3.

"I could not get the information in the DUN (State Legislative Assembly) before this but there is now a higher chance I can get it in the court.

"And the people of Sarawak will have the chance to know how the state government spend their money," said Chong, also Kota Sentosa assemblyman, at a press conference at the DAP Kuching headquarters here yesterday.

In Putrajaya on Wednesday, the Federal Court judges led by Court of Appeal president Tan Sri Ahmad Ma’arop and members Tan Sri Hasan Lah, Tan Sri Azahar Mohamed and Tan Sri Aziah Ali dismissed Chong’s appeal against the majority decision of the Court of Appeal which ruled that the Sarawak government and the State Financial Authority (second respondent) could sue him for defamation.

In its judgement, the Federal Court ruled that the Derbyshire principle is not applicable in this case because there are existing laws available, including the Government Proceedings Act 1956 (GPA). The common law based on Derbyshire principle basically forbids public authorities from suing for defamation.

Ahmad, who wrote the unanimous judgment yesterday, partially upheld the Court of Appeal’s majority decision from 2016, which ruled that Section 3 of the GPA does not exclude proceedings in libel or defamation by or against the state government.

However, Ahmad ordered that Chong’s case be remitted back to the Kuching High Court because the Court of Appeal had erred in entering its judgment.

The Sarawak government and the state financial authority filed an action in the Kuching High Court in April 2013 against Chong for defamation relating to his allegations in the article “RM11 billion disappearing into a black hole” which was published in a Chinese national daily and a news portal, as well as in pamphlets distributed by Chong and the DAP.

In April 2014, the Kuching High Court held that the government and the State Financial Authority were not allowed under common law to sue Chong for defamation even though his words against the government were defamatory.

The High Court struck out the government’s suit against Chong. In April 2016, by a majority ruling, the Court of Appeal set aside the High Court’s decision, ruling that the government has the right to sue for defamation under Section 3 of the Government Proceedings 1956, and that the common law prohibiting a government from commencing such action, does not apply to Malaysia.

On a related matter, Chong who is also federal Deputy Minister of Domestic Trade and Consumer Affairs, warned Gabungan Parti Sarawak (GPS)led leaders that they may have a taste of their own medicine now that all governments may sue for defamation.

The Pakatan Harapan Sarawak chairman and Stampin MP reminded GPS leaders that PH is now in control of the federal government.

"Any criticism that we feel is defamatory, well, they will have a taste of their own medicine. We will not use this principle of the law easily. We will not misuse it, but I will direct at GPS leaders because they are the ones who advocate the wrong principle of the law," he said.

According to Chong again, it is a very established principle of law in all Commonwealth countries that governments cannot sue for defamation.