Kuching MP Chong Chieng Jen’s application for leave to appeal over a controversial Court of Appeal decision that ruled federal or state government or its agencies can sue an individual for defamation is set before the appeal court tomorrow.
The application will be heard by the highest court in the country in Putrajaya, where Chong, who is also Kota Sentosa assemblyperson, will be represented by lawyer Ranjit Singh.
The landmark decision six months ago has big implications on individuals, especially politicians, because if the Federal Court agrees with it, the government or its agencies can sue any individual for defaming it.
In allowing the appeal by the Sarawak government, and the state financial authority, Court of Appeal judge Abdul Rahman Sebli wrote that Section 3 of the Government Proceedings Act 1956 does not exclude libel or defamation proceedings by or against the government.
The judge in his 28-page judgment said that if a claim afforded grounds for civil proceedings between individuals, it would also afford grounds 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,” he said.
“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.
The other judge who concurred with Justice Abdul Rahman was Justice Zamani A Rahim.
The majority judgment also ruled that the right of the government to sue for defamation is independent of the right of any member of the administration, including the Sarawak chief minister, to sue in his own name and personal capacity.
Previous court rulings have said that the government or its bodies cannot sue as it is "not a living thing" but politicians can sue in their personal capacity.
Justice David Wong Dak Wah who wrote the minority judgment opined that a government cannot sue 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.
“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,” Justice Wong wrote.
Chong was sued following his remarks made in a media and a DAP leaflet alleging that RM11 billion of public funds had disappeared into a “black hole”.
The Kuching High Court dismissed the suit, but the appellate court in its majority judgment overturned the decision resulting in this appeal by the DAP politician. - Mkini