Minority judgment on why gov’t can’t sue for defamation

The minority judgment in the Sarawak state government and State Financial Authority vs Kuching MP Chong Chien Jen, said the government or its departments and agencies cannot sue individuals, as it can resort to criminal defamation law, the Printing Presses and Publications Act 1984, and the Sedition Act 1948 to defend itself from defamatory statements.

Court of Appeal’s Justice David Wong Dak Wah also adopted the Derbyshire County Council vs Times Newspapers Ltd (1993) rule, which said public bodies cannot sue the media or individuals for defamation.

This is unlike the majority judgment by Justice Abdul Rahman Sebli and adopted by Justice Zamani A Rahim, which did not follow the Derbyshire principle, but ruled that Section 3 of the Government Proceedings Act, 1956 (GPA) does not exclude the right for proceedings in libel or defamation by or against the government.

Previous court rulings have said that the government or its bodies cannot sue as it is "not a living thing".

Justice Wong in his 30-page judgment noted that although the Derbyshire principle has yet to go to the apex court, there are two local cases which adopted the Derbyshire case which have been affirmed by the Court of Appeal namely in the Kerajaan Negeri Terengganu and one another, vs Dr Syed Azman Syed Ahmad Nawawi (PAS), as well as the Adnan Yaakob vs Utusan Malaysia case.

“It is my view that the Kerajaan Negeri Terengganu is an apt authority for the application of the Derbyshire principle for the simple reason that it also concerned a state government, as in this present case.

“While in the process of writing this judgment, it was brought to my notice that this (appellate) court had recently dealt with the issue of whether the Derbyshire principle applies in our country in the Adnan Yaakob case...”

“Hence we can say that presently there are two appellate court decisions adopting the Derbyshire principle as part of the law of defamation in this country. I draw comfort for my view from those two decisions of this court.”

The judge, who led the three-member panel, also cited a Singapore case - Lee Hsien Loong vs Singapore Democratic Party and others - which adopted the Derbyshire case.

In the Derbyshire case, the House of Lords wrote: “It is of the highest public importance that a democratically elected governmental body, or indeed any governmental 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.”

Wong's judgment was made available online a few days after Justice Abdul Rahman's written judgment was uploaded.

Constitutional democracy

Justice Wong said Malaysia is a constitutional democracy as opposed to a parliamentary democracy, where Parliament reigns supreme.

“We have what we call a constitutional democracy where the (Federal) Constitution reigns supreme as opposed to a parliamentary democracy where Parliament reigns supreme. In our Constitution, the citizens of the country are given certain basic rights, one of which is freedom of speech which is found in Article 10 of the Constitution.

“The constitution itself recognised that freedom of speech is not absolute and rightly so in any modern democracy. It empowers the government of the day to limit that freedom for the common good of the country,” he said, adding examples of such clear words can be seen in this country in the Sedition Act and Printing Presses and Publications Act.

Wong added that Section 499 of Penal Code on criminal defamation is another law that the government can use, as well as the Defamation Act 1957.

He noted that nowhere in any Act of Parliament is there a specific provision allowing the government to maintain an action for defamation to stifle this constitutional right of freedom of speech of citizens of the country.

“The significance of the absence of such a provision cannot be underestimated. As I have said earlier, there is a presumption that the government will not invade constitutional rights and when they do, they can only do so by clear words employed in Acts of Parliament,” the judge reasoned.

For this reason, he said the Derbyshire principle applies.

Option to initiate criminal proceedings

“I see no reason why we should not adopt the Derbyshire principle in our defamation law as it would be consistent not only to Article 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.

“As pointed out by the Law Lords in the Derbyshire case, the government continues to possess the right to take a criminal defamation action against whoever uttered defamatory words.

“As the government is a public body, it is only appropriate that criminal proceedings through the Attorney-General’s Chambers are used to combat malicious defamatory utterances against the government of the day,” he said.

Looking at this case, Wong said where Chong had allegedly uttered defamatory words in claiming RM11 billion was lost in the state, the appropriate defamation action should have been filed by the Sarawak finance minister if the Derbyshire principle applies.

“As the alleged defamatory utterances are related to the management of the financial affairs of the state, the most proximate individual, I would imagine, could be the minister of finance of Sarawak in his own personal capacity.

“But that said and to avoid any doubt, let me say that I am not making any ruling that the aforesaid minister is the roper person who should be embarking on this suit of defamation against the respondent. That issue is left for another day,” he said.

For this reason, Wong dismissed the appeal by the Sarawak government and the state financial authority, but as a result of the majority judgment by Abdul Rahman, the verdict which allowed the Sarawak government and the state financial authority to appeal the Kuching High Court ruling barring it from suing Chong for his remarks, stands. -Mkini