Fed, state govt can sue individuals for defamation

PUTRAJAYA: In a landmark decision, the Federal Court has ruled that the federal and state governments can sue individuals for defamation.
A five-member bench led by Court of Appeal president Tan Sri Ahmad Ma'arop ruled that the government has a reputation which it could protect via defamation suits.
In a unanimous decision, the apex court dismissed an appeal by former Bandar Kuching MP Chong Chieng Jen against a Court of Appeal ruling that public authorities could sue an individual for defamation, in the suit brought against him by the Sarawak state government.
The apex court dismissed Chong's appeal yesterday and ordered the case to be sent back to the Kuching High Court.
Ahmad also said that the Court of Appeal was wrong to rule that Chong was liable for defamation without hearing his defence.
Ahmad, who wrote the unanimous judgement, partially upheld the Court of Appeal majority decision from 2016, which ruled that Section 3 of the Government Proceedings Act does not exclude proceedings in libel or defamation by or against the government.
The court ruled that the Derbyshire principle is not applicable as there are existing laws available, including the GPA.
The common law Derbyshire principle, which forbids public authorities from bringing actions for defamation, had previously been enforced twice by the Court of Appeal, when striking out suits by former Pahang mentri besar Datuk Seri Adnan Yaakob and former Penang chief minister Lim Guan Eng against the media.
Chong, who is now Stampin MP and deputy domestic trade and consumer affairs minister, was sued by the Sarawak government for defamation in 2012 after issuing a statement which was carried by several news portals.
His statement concerned the Sarawak government allegedly channelling RM11 billion to agencies said to be unknown to the public.
Although Chong won at the Kuching High Court, the Court of Appeal subsequently reversed the decision and ruled that the Sarawak government could sue for defamation.
The other judges who sat with Ahmad on the bench yesterday were Federal Court judges Tan Sri Hasan Lah, Datuk Seri Azahar Mohamed and Tan Sri Aziah Ali.
The other judge, Justice Tan Sri Abu Samah Nordin, had retired since Chong's appeal was first heard at the apex court in March last year.
In his judgement, Ahmad said that the government has a statutory right to sue as provided for in GPA.
"GPA does not preclude the government from taking civil action for defamation," he was quoted as saying.
The court fixed Oct 3 for case management at the Kuching High Court.
Chong was represented by Ranjit Singh, while Sarawak legal adviser Mohd Azrul Azlan appeared for the government.
Meanwhile, former judge Datuk Seri Gopal Sri Ram said the Federal Court ruling is flawed.
"The Federal Court has missed the point completely," he told reporters yesterday.
Sri Ram, who was present in court during yesterday's proceedings, said the Government Proceedings Act was a pre-Merdeka statute.
"Therefore it cannot be treated as imposing a restriction on the right of free speech under Article (10) (2) of the Federal Constitution," he said.
Being a pre-Merdeka law, it must be brought into accord with Article 162 (6) of the constitution, the supreme law of the country, he said.
"When we do that, the right of the government to sue must be subject to Article (10) (1) (a) which will include the right criticise the government without restriction," he said.
Sri Ram said under Article 5 (1), the personal liberty of a person could not be taken away save in accordance with law.
"The law includes common law of England. Under that law, a government has no reputation to protect," he added.
Sri Ram further said the right to sue must be accompanied by a cause of action.
However, he said the Government Proceedings Act only stated governments could sue as an ordinary person but the law must vest a cause of action.
He said common law prevented the government to bring an action for defamation.