Government can sue for defamation
The Federal Court rules governments have reputation to protect, dismisses DAP Sarawak chairman’s appeal
KUCHING: The Federal Court in Putrajaya yesterday made a landmark decision; that the federal and state governments can sue people for defamation.
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 Kota Sentosa assemblyman Chong Chieng Jen’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 April 2013, the Sarawak government and the state financial authority filed an action in the Kuching High Court against Chong for defamation relating to his allegations that “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.
Chong, who is also Sarawak Democratic Action Party ( DAP) chairman and Stampin MP had argued that based upon the principles of common law, a public body like a government, could not initiate an action for defamation against him; and that it would be against the constitutional sa feguar d for f re edom of spe ech and expres sion i f governments were allowed to sue elected representatives for defamation.
However, in May 2017, the Court of Appeal sitting here overruled Chong’s argument.
The government has a reputation to protect via defamation suits, the court added.
The common law based on Derbyshire principle basically forbid s public authori t ies f rom bring ing act ions for defamation. It had been enforced twice by the Court of Appeal when striking out suits by individuals like former Pahang Menteri Besar Datuk Seri Adnan Yaakob and former Penang chief minister Lim Guan Eng against the media.
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).
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.
Meanwhile former Federal Court Judge Gopal Sri Ram insisted that under the law, the government has no reputation to protect.
Therefore, he said, by allowing the government to sue for defamation infringes the personal liberty of individuals. He also told Malaysiakini that the law of the country includes the English common law under which the government has no reputation to protect.
He claimed yesterday’s apex court judgement missed an important point.
The Government Proceedings Act 1956 which the court used as basis of its argument to override the Derbyshire principle, is a pre-Merdeka statute, he pointed out.
In an immediate response, the State legal counsel Dato Sri JC Fong said that the apex court’s deci sion was a landma rk decision adding that the Sarawak government would be ful ly prepared to present its case in the High Court when a date of this action is fi xed.
In April 2013, the Sarawak government and the State Financial Authority filed an action in the Kuching High Court against Chong for defamation relating to his allegations that ‘RM11 billion disappearing into a black hole’ published in a Chinese national daily Sin Chew Daily and news portal Sin Chew Daily and Malaysiakini and in pamphlets distributed by Chong and the DAP.
In April 2014, the Kuching High Court held t hat t he 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.
The court also ordered that damages payable by Chong to the government be assessed by the Registrar of the High Court as his words have been found to be defamatory.
The Federal Court had allowed the Bar Council of Malaya and the Sarawak Advocates Association to appear as amicus curie (friends of the Court) at the hearing of the appeal as this is a ‘public interest’ case involving constitutional rights of freedom of speech and expression.