PUTRAJAYA: Five Federal Court judges have maintained that the government can sue individuals for defamation and be sued in turn, while another two have taken the opposing stand.
However, all seven were unanimous in finding that political parties cannot sue individuals for defamation as they do not have a “reputation” as such.
The five are Court of Appeal President Rohana Yusuf, Chief Judge of Malaya Azahar Mohamed, judges Hasnah Mohammed Hashim, Mary Lim Thiam Suan, and Zaleha Yusof.
Judges Nallini Pathmanathan and Harmindar Singh Dhaliwal said the government could not sue or be sued. In this, the duo departed from a 2018 Federal Court ruling that the Sarawak government could bring a defamation suit against state DAP chairman Chong Chieng Jen.
Although the Federal Court made these findings last year in deliberating on whether a political party or government could sue or be sued for defamation, the written judgment was only made available today.
The matter was brought up to the seven-member bench on April 3 last year in an appeal by Kepong MP Lim Lip Eng to strike out a defamation suit filed against him by former MCA secretary-general Ong Ka Chuan.
In July 2017, Ong, on behalf of MCA, filed a defamation suit in his capacity as a public officer, against Lim over remarks he had made at a press conference at the Parliament building in 2016 that the MCA had allegedly used government funds allocated for Chinese vernacular schools.
The bench agreed with lawyer Gopal Sri Ram, who represented Lim, that political parties could not bring an action for defamation following the decisions in Goldsmith v Bhoyrul and Rajagopal v Jayalalitha.
He had submitted that both the government and political parties, being registered societies, could not maintain a cause of action for defamation as both had no reputation.
Sri Ram, who was assisted by Guok Ngek Seong and Yasmeen Soh, said the law of defamation only protected the reputation of persons.
Zaleha, in the judgment concurred by the other four, said, unlike a society, the government could sue and be sued on its name as “it is a legal entity by itself”.
She said the MCA, however, was “a mere political party” that was dependent on its members to take action.
“Assuming for a moment the respondent (MCA) does have reputation (which we have already said it does not), how such reputation was injured was not pleaded,” she said.
On the other hand, she said, a company could bring a defamation suit when its business suffered because its reputation had been injured.
Zaleha, who will retire tomorrow, said a political party relied on the public to get votes to be in power and it was therefore not right, nor in the public interest, to put the public in fear of a defamation suit and prevent them from expressing their views.
“Allowing this to happen definitely goes against the true value of democracy,” she said, adding that MCA must not “be thin-skinned” and must always be open to public criticism.
Harmindar, who wrote the separate grounds, said although the government had a statutory right to sue, this did not mean it could maintain an action for defamation.
“The courts still have to rely on the common law principles in an action for defamation. With respect, I do not see why the Derbyshire principle is objectionable,” he said.
(The House of Lords in Derbyshire held that a local government cannot file a defamation suit for damages).
Harmindar said it was also doubtful if any government could ever have a “governing reputation”.
He said the government was the representative of the people and it was “quite remarkable” for the government to have a reputation, although individual members of the government had the right to sue.
Harmindar said political parties should not bring any defamation action as they had all the resources to counter any unflattering comments made against them. - FMT
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