THE Federal Court’s ruling in affirming that the government can sue individuals for defamation limits people’s rights to give their views and criticisms of the government.
Senior lawyer Mohamed Haniff Khatri Abdulla said the decision would restrict the rights of the people in expressing their views and hamper their ability to criticise the government, which contravenes Article 10 of the Federal Constitution that states that every citizen has the right to freedom of speech and expression.
“In this case, the government is a non-individual concept that has no reputation to be protected.
“If we allow the government to file an action, it is as if we are putting the government’s right at the same level with the people’s right.”
Haniff added that the concept of criticism against the government could not be placed under civil law as there was another provision that the government could apply, such as criminal law.
“Defamation law involves remedies in the form of damages, so why would the government want to claim for damages due to reputation?”
In a landmark decision yesterday, the Federal Court ruled that the federal and state governments can sue individuals for defamation.
The five-member bench, led by Court of Appeal president Tan Sri Ahmad Ma’arop, ruled that the government had a reputation that it could protect via defamation suits.
The ruling was made in the case involving Bandar Kuching member of parliament Chong Chieng Jen’s appeal against the Sarawak government.
The court ruled that the Derbyshire principle was not applicable as there were laws available, including the Government Proceedings Act 1956 (GPA).
Ahmad, who wrote the unanimous judgment, partially upheld the Court of Appeal majority decision from 2016, which ruled that Section 3 of the GPA did not exclude defamation proceedings by or against the government.
Newsportal Malaysiakini reported that the court then ordered for Chong’s case to be remitted back to the Kuching High Court, as the Court of Appeal had erred in entering its judgment.
The common law Derbyshire principle, which forbids public authorities from bringing actions for defamation, had been enforced twice by the Court of Appeal when striking out suits by former Pahang menteri besar Datuk Seri Adnan Yaakob and former Penang chief minister Lim Guan Eng against the media.
Chong, now the deputy domestic trade and consumer affairs minister, was sued by the Sarawak government for defamation in 2012 after issuing a statement carried by several news portals, including Sin Chew Daily and Malaysiakini.
His statement concerned the Sarawak government allegedly channelling RM11 billion to agencies said to be unknown to the public.
Although Chong won at the Kuching High Court, the Court of Appeal subsequently reversed the decision and ruled that the Sarawak government could sue for defamation.
The other judges who sat with Ahmad on the bench were Federal Court judges Tan Sri Hasan Lah, Tan Sri Azahar Mohamed and Tan Sri Aziah Ali. The other judge, Abu Samah Nordin, had retired since Chong’s appeal was first heard at the apex court in March last year.
In his judgment, Ahmad said that the government has a statutory right to sue as provided for in GPA.
He said the Derbyshire principle did not apply because in Section 3 of the Interpretation Acts 1948 (1967), the words “written law” did not include common law.
Ahmad added that there was nothing in the GPA which could be construed as prohibiting or restricting the government from suing for defamation.
The court has since fixed Oct 3 for case management at the Kuching High Court.
Free Malaysia Today quoted former Federal Court judge Datuk Seri Gopal Sri Ram as saying that the Federal Court’s ruling was flawed.
He said the ruling effectively rejected a common law principle that public authorities could not bring action against a person for lowering their reputation.
Gopal was also quoted as saying that the Government Proceedings Act, which allows the government to sue, was a pre-Independence statute.
He said being a pre-Independence law, it must be brought in line with Article 162(6) of the constitution and the right of the government to sue must be subject to Article (10)(1)(a), which includes the right to criticise the government without restriction.
Gopal said under Article 5 (1), the personal liberty of a person could not be taken away without the provisions of law.
“The law included the common law of England. Under that law,
a government has no reputation to protect,” he was quoted as saying.