Now federal, state gov'ts can sue individuals for defamation

In a decision which is likely to raise eyebrows, state and federal governments can now sue any person for alleged defamatory remarks made against them.

Last Thursday, the Court of Appeal made this landmark ruling in a majority judgment in a case involving Sarawak state government, Sarawak financial authority and DAP's Bandar Kuching MP Chong Chien Jien.

Justice Abdul Rahman Sebli who wrote the majority judgment noted that Section 3 of the Government Proceedings Act, 1956 (GPA) does not exclude proceedings in libel or defamation by or against the government.

He said Section 3 gives the government the same right as a private individual to enforce a claim against another individual by way of civil action, adding that this is a statutory right, not a common law right.

The judge, who along with Court of Appeal judge Zamani A Rahim pronounced the majority decision, said the term “civil proceedings” used in Section 3 is defined by Section 2(2) to mean “any proceeding whatsoever of a civil nature before a court”.

The dissenting judge was justice David Wong Dak Wah, who led the panel.

Justice Rahman said the operative phrase are “which would, if such claim had arisen between subject and subject, afford ground for civil proceedings”, meaning to say if a claim affords ground for civil proceedings between individuals, it will also afford ground for civil proceedings between the government and individuals.

“Thus, anything that is said about the government that has a tendency to lower its reputation in the estimation of right thinking members of the public, or to expose it to hatred, contempt or ridicule, will give rise to a cause of action in defamation. It is the same test that is applicable in a claim for defamation between private individuals,” justice Rahman said in the 28-page judgment.

“We are not suggesting of course that the government cannot be criticised. It can and that right to criticise must be protected as it is a symbol of a functioning democracy. What cannot be done however is to defame the government,” he said, adding that the words cited by Chong as criticism meant it in the defamatory sense."

Previously, courts ruled that the government or its bodies cannot sue as it is "not a living thing".

The Sarawak government and the state financial authority was appealing against the Kuching High Court judgment barring it from suing Chong for his remarks quoted by several media including Malaysiakini, and a DAP leaflet where the Bandar Kuching MP and Kota Sentosa assemblyperson alleged that RM11 billion of public fund had disappeared into a “black hole”.

'Not against public interest'

On the question whether it is in the public interest to allow governments to sue for defamation, justice Rahman said if the law allows it, then it cannot be against the public interest.

“Parliament, as is often said, does not legislate in vain. It must have had the public interest in mind when enacting Section 3 of the GPA by not excluding defamation from its ambit.

“Having given anxious consideration, we are inclined to agree with Sarawak state government lawyer JC Fong that the statutory right given to the government by Section 3 of the GPA to sue for defamation cannot be taken away by the application of the common law principle propounded by the House of Lords in the Derbyshire County Council case or, for any other common law positions in other common law jurisdictions,” the judge ruled.

“Further and in any event, Section 3(1) of the Civil Law Act expressly excludes the application of the common law of England where 'other provision has been made or may hereafter be made by any written law in force in Malaysia'.

“Section 3 of the GPA is one such 'other provision' which, as we have said, does not prohibit or exclude the government from suing for defamation. The common law of England cannot override this statutory provision.

"We hold that the common law of England as applicable to defamation action by the government or governmental body has no application in Sarawak by reason of Section 3(1)(c) of the Civil Law Act and by reason of Section 3 of the GPA, which confers the state government the same right as a private citizen to sue another private citizen for defamation by way of civil action."

In allowing the appeal and setting aside the High Court decision, justice Rahman said under Section 22(1) of the GPA, civil proceedings by the government of a state must be instituted by the state government.

“Thus, if the object of the defamatory statement is the state government, any action that is taken against the defamer must be in the name of the state government and not in the name of any individual member of the administration.

“The statutory right of the state government to sue for defamation is independent of the right of any member of the administration, including the chief minister to sue in his own name and in his personal capacity," he said.

Justice Rahman added that if any of them were to sue in that capacity, it will be an action between private citizens and not between government and citizen.

The judge gave an example of someone accusing a member of a state administration to be a thief, it is still a private and personal matter between the accuser and the accused.

Justice Rahman also ruled the Derbyshire principal which is based on common law cannot be applied here, as “Section 3 of the Civil Law Act, 1956 directs the courts to apply the common law of England only in so far as the circumstances permit and save where no provision has been made by statute law”.

The Derbyshire County vs Times Newspapers Ltd case applied in United Kingdom and cases here the courts ruled that local authorities cannot institute legal action based on criticism.

This principle was used to strike out a suit by Pahang Menteri Besar Adnan Yaakob against Utusan Malaysia last month. -Mkini