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Remember the case when the then Pahang Chief Minister brought a defamation action against Utusan Malaysia? I previously wrote about whether an elected representative can sue for defamation here. In that Utusan Melayu case, the Court of Appeal followed what is widely recognized as the Derbyshire principle in deciding that a Chief Minister cannot sue the Media for defamation as the position of an elected representative/office bearer is one that should be open to public criticism and questioning to safeguard public interest in a democratic society.
With that decision in mind, what about cases where a Government initiates a suit for Defamation? Would the same principle apply as well?
Difference Between Governments & Elected Representatives
In Malaysia, an elected representative sits at the House of Representative (Dewan Rakyat), the lower house of the Parliament which consists of members elected during the general election.
Malaysia is a federation of states and as such, has two types of governments, i.e. the Federal Government and the State Government. A Federal government will govern the bigger geopolitical entity which is made up of smaller entities referred to as states, whilst the State Government governs their respective states within their authorized jurisdiction.
In short, an Elected Representative is an individual while a Government is an amorphous entity.
The Federal Court case of Chong Chieng Jen v Government of State of Sarawak [2019] 1 CLJ 329
In this case, the Government of the State of Sarawak and the State inancial Authority (“Plaintiffs“) filed a suit against Chong Chieng Jen, the then Vice Chairman of DAP and the Member of Parliament for Bandar Kuching as well as a Member of the Sarawak State Assembly for Kota Sentosa (“Defendant“) for libel.
The Plaintiffs alleged that the Defendant has made defamatory statements against them concerning the mismanagement of the State’s financial affairs. The statement was published in the Sin Chew Daily, the DAP’s leaflet and in an online news portal Malaysiakini.
In the High Court (where the Suit was initiated), the Defendant attempted to strike out the Suit on the following point of law:
Whether the abovenamed first plaintiff, being the State Government of Sarawak, and/or the second plaintiff, being Government Department and an organ of the Government have the right to sue and to maintain an action for damages for defamation against the defendant.
The learned High Court Judge determined the first question in favour of the Defendant. The learned Judge held that although a State Government or a statutory body can sue and be sued, that right to sue does not extend to the right to sue for defamation.
The learned High Court’s decision was premised upon the Derbyshire principle which can be briefly summarized as follows:
“It is of the highest public importance that a democratically elected government body, or indeed any government body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech.”
After losing the battle in the High Court, the Plaintiffs appealed to the Court of Appeal. In a 2-1 split decision, the majority of the Court of Appeal reversed the High Court decision in favour of the Plaintiffs.
The rationale for the majority of the Court of Appeal’s decision is premised is premised on Section 3 of the Government Proceedings Act 1956 (“GPA”) which reads as follows:
Subject to this Act and of any written law where the Government has claim against any person which would, if such claim had arisen between subject and subject, afford ground for civil proceedings, the claim may be enforced by proceedings taken by or on behalf of the Government for that purpose in accordance with this Act.
It was held that the wordings in s.3 of the GPA do not preclude the Government from proceeding with an action in defamation.
In reconciling the tension between the Derbyshire principle and s.3 of the GPA, the majority of the Court of Appeal held as follows:
The decision in Derbyshire was based on the common law which emphasised on public interest and the freedom of expression to criticise the Government and its organs, in that case the local Government. The decision was made against the backdrop of a developed democracy whose social fabric and geopolitics were very different from ours. The Government Proceedings Act 1956, however, was a special statute specially promulgated by Parliament to give the Federal and State Governments the right to commence civil proceedings against any person. Section 3 gives the Government the same right as a private individual to enforce a claim against another private individual by way of a civil action. It is a statutory right and not a common law right. [Emphasis added]
The decision was appealed to the Federal Court by the Plaintiffs. On 26.09.2018, the 5-member panel of the Federal Court unanimously upheld the verdict of the majority of the Court of Appeal in holding that the Plaintiffs have the right to sue and maintain an action for damages for defamation against the Defendant.
Conclusion
The Federal Court’s decision means that the Government has a right under Malaysian law to sue individuals for defamation. The apex court preferred a literal reading of a general piece of legislation instead of adopting a comprehensive interpretation which safeguards the fundamental principles of freedom and the pillars of democracy.
The Author shares the sentiments of the dissenting judgment in the Court of Appeal by David Wong Dak Wah JCA:
“…To ensure that art. 10 of the Federal Constitution is given its due importance, a common sense approach must be adopted and that is simply to start on a premise that constitutional rights of citizens must be jealously guarded in view of the fact that they are basic and fundamental in nature. … There was no reason as to why this court should not adopt the Derbyshire principle in our defamation law as it would be consistent not only with art. 10 of the Federal Constitution but to all the hallmarks of a modern democracy. Those hallmarks, among others, relate to the need for accountability, the need for transparency, the need for freedom of expression and the need for a healthy and responsible fourth estate…”
This is a great setback to the development of our laws and to the constitutional liberty of our netizens to question and critic the Government for discrepancies. It is hoped that the Apex Court revisits this precedent in the near future and upholds the Derbyshire principle as was the case in the Utusan Melayu case.
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