Court rules governments can sue individuals for defamation
(FMT) – The Federal Court today ruled that federal and state governments can sue individuals for defamation, refusing to accept the common law Derbyshire principle that public authorities cannot bring action against a person for lowering their reputation.
This legal principle was however adopted by the Court of Appeal when striking out suits by former Pahang menteri besar Adnan Yaakob and former Penang chief minister Lim Guan Eng against the media.
Today’s decision by the apex court followed the move by a four-member bench to partially dismiss an appeal by former Kuching MP and state DAP chief Chong Chieng Jen against the Sarawak government.
Justice Ahmad Maarop, who delivered the unanimous ruling, said in Malaysia, the right of federal and state governments was provided for under Section 3 of the Government Proceedings Act 1956.
“Thus, the statutory right of the government to sue in civil proceedings under Section 3 of the act, including for defamation, is not subject to the common law of England,” he said.
Others in the panel were Hasan Lah, Azahar Mohamed and Aziah Ali. Another member, Abu Samah Nordin, retired last month.
Ahmad said according to Section 3 of the Interpretation Acts 1948/1967, the words “written law” did not include common law.
He added that the government could sue for defamation as it had a reputation.
He said the English case law was not suitable here as the right to freedom of speech under the Federal Constitution also imposed restrictions.
He said Parliament imposed restrictions for defamation and the incitement to any offence.
“In the present appeal, the right to freedom of speech is subject to the law of defamation.”
The bench then ordered the Sarawak government’s defamation suit to be sent back to the High Court in Kuching for trial.
Ahmad said this was because the trial judge had not considered Chong’s defence in arriving at a decision.
“As such, the Federal Court is of the view that although the majority of the Court of Appeal was right in holding that the plaintiffs have the right to sue, it erred in entering a judgement,” he said.
In April 2013, the state government and state financial authority filed the action relating to Chong’s allegation that RM11 billion had “disappeared into a black hole”, published in a Chinese national daily and a news portal, as well as in pamphlets distributed by Chong and DAP.
On April 28, 2014, the High Court held that the plaintiffs were not allowed under common law to sue Chong for defamation, even though his words against the government were defamatory.
The court also struck out the government’s suit against Chong.
In a majority ruling on April 7, 2016, the Court of Appeal set aside the High Court’s decision, ruling that the government had the right to sue for defamation under the Government Proceedings Act 1956.
It said common law which prohibited a government from commencing such action did not apply in Malaysia.
