Lim Guan Eng wins appeal to reinstate award for damages for defamation by Perkasa

PUTRAJAYA: The Federal Court has reinstated a High Court’s decision that ordered Pertubuhan Pribumi Perkasa Malaysia (Perkasa) and its president Datuk Ibrahim Ali to pay RM150,000 in damages to former Penang chief minister Lim Guan Eng for defamation.

In a 2-1 majority decision which was delivered via Zoom, the three-member bench – led by Federal Court judge Datuk Nallini Pathmanathan – allowed Lim’s appeal to set aside the Court of Appeal’s decision, which had overturned the High Court’s ruling.

The court also awarded RM50,000 in costs to Lim, who is DAP secretary-general and former finance minister.

Justice Datuk Harmindar Singh Dhaliwal, who delivered the court’s judgment, said it could be observed that there was no issue that Lim had been defamed in his reputation by the defamatory statements.

“It was beyond dispute that ordinary and reasonable members of the community will see the plaintiff (Lim) as a traitor to his country who is willing to divulge national secrets,” he said, adding that it was a case where the defamatory words were personally targeted at Lim.

Justice Harmindar Singh said Lim brought the lawsuit as an individual and not by an organisation in the form of the government or a government body.

He said the sting of the statements was more a criticism of Lim rather than his office or the Penang state government since he was the one who had the capacity to divulge the secrets.

Lim had filed the defamation suit in 2012 against seven defendants, claiming that Perkasa former information chief, the late Ruslan Kassim, had published a statement on Perkasa’s website on Oct 1, 2011, which implied that he (Lim) was endangering national security by exposing the country’s secrets to Singapore.

Justice Harmindar Singh also held that no distinction is to be drawn between a public officer being defamed for conduct in his official capacity and his personal capacity.

“As long as the defamatory statement is capable of being read as referring to the individual and not the government as a whole, the individual officer is entitled to sue,” he said in his decision, which was concurred by Justice Nallini.

Justice Harmindar Singh said a public official was capable of being defamed in the same way as any other ordinary citizen as both shared the right to dignity and reputation, adding that they must also enjoy the same rights as other citizens and be allowed to sue for defamation in any individual capacity, whether in relation to personal or official matters.

“In this case, false allegations of the most serious kind were levelled at the plaintiff who was holding the high position of chief minister,” he said.

He said the Court of Appeal was in error when it decided that public officials were precluded in the public interest from bringing a defamation action in their official capacity or in relation to matters affecting their official functions.

In his dissenting decision, Justice Abdul Rahman Sebli said that Lim had filed the defamation suit in his official capacity, adding that evidence, taken in its entirety, showed beyond any doubt that the defamatory statements were directed at Lim in his official capacity as then-chief minister of Penang.

He said Lim’s primary concern was to protect his reputation as Penang Chief Minister and the reputation of the Penang state government that he was heading and not so much of his personal reputation as a private citizen.

Justice Abdul Rahman said since Lim had sued in his official capacity, the law required him to be represented by a government legal officer and not by a private law practitioner of his choice.

He said there was failure by Lim to fulfil the requirements under the Government Proceedings Act 1956 when he appointed a private law practitioner to represent him in the action instead of being represented by a government legal officer and that the law firm representing him did not produce fiat or formal authorisation from the Penang State Legal Adviser.

On March 26, 2015, the High Court ordered New Straits Times Press (M) Bhd (NSTP) and Utusan Melayu (M) Sdn Bhd to pay RM200,000 each in damages and Perkasa, Ibrahim and Ruslan to pay RM150,000 after finding them liable for defamation.

On Dec 21, 2016, the Court of Appeal allowed the appeals by Perkasa and the publishers to overturn the High Court decision.

On March 5, 2019, Lim pursued his application to seek leave to appeal in the Federal Court against Perkasa, Ibrahim and Ruslan, but withdrew his application against NSTP and Utusan Melayu after the publishers conceded to reinstate the High Court decision and agreed to pay the damages to him.

Lim, who was represented by lawyer Americk Sidhu, subsequently obtained leave to appeal to the Federal Court.

However, at the outset of his appeal hearing in the Federal Court on Sept 22 last year, Lim withdrew his legal action against Ruslan who had passed away.

Lawyer Adnan Seman represented Perkasa and Ibrahim.