Apex Court rules government can sue for defamation

0

 

KUCHING: The Federal Court in Putrajaya today made a landmark decision that the federal and state governments can sue people for defamation.

A five-judges bench led by Court of Appeal president Tan Sri Ahmad Ma’arop then dismissed the appeal of Kota Sentosa assemblyman Chong Chieng Jen’s appeal against the Sarawak government.

The Federal Court also ruled that the Derbyshire principle is not applicable in this case because there are existing laws available, including the Government Proceedings Act 1956 (GPA).

The government has a reputation protect via defamation suits, the court added.

Ahmad, who wrote the unanimous judgement, partially upheld the Court of Appeal 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.

Chong was sued by the Sarawak government for defamation in 2012 after issuing a press statement which was carried by the several news portals, including Sin Chew Daily and Malaysiakini.

The common law Derbyshire principle forbids public authorities from bringing actions for defamation but had been previously enforced twice by the Court of Appeal, when striking out suits by individuals like former Pahang Menteri Besar Adnan Yaakob and former Penang Chief Minister Lim Guan Eng against the media.

The landmark case centered around the issue whether the state government can file a defamation suit against a person for publishing libelous words against it.

Chong, who is also State Democratic Action Party (DAP) chairman and Stampin MP, appealed against the majority decision of the Court of Appeal which ruled that the state government and the State Financial Authority (second respondent) can sue him for defamation.

He had argued that based upon the principles of common law, a public body like a government, cannot initiate an action for defamation against him; and that it would be against the constitutional safeguard for freedom of speech and expression if governments were allow to sue elected representatives for defamation.

However in May 2017 the Court of Appeal sitting here overruled Chong’s arguement.

In April 2013, the state 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 and a news portal, and in pamphlets distributed by Chong and the DAP.

In April 2014, the Kuching High Court held that the 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 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.

Meanwhile, state legal counsel Dato Sri JC Fong when contacted by The Borneo Post, said the decision was a landmark decision and the Sarawak government will be fully prepared to present its case in the High Court when a date of this action is fixed.