Court decision on Govt right to sue slammed by both sides of the political divide

PETALING JAYA: Both members of the ruling coalition, as well as the opposition, have come together to criticise the Federal Court’s landmark judgment allowing the government to sue individuals for defamation, saying that this will stifle criticism and the freedom of expression.

Deputy Minister in the Prime Minister’s Department Hanipa Maidin (pic) said no government should be given the right to sue for defamation.

“As far as I am concerned, the decision by the English court in the Derbyshire case is very, very sound and should deserve our utmost respect.

“The Derbyshire judgment reflects the true nature of law on defamation vis-a-vis the sacred right of the people to say something – even seemingly defamatory – about their elected government.

“The government must not be given any right to sue for defamation, period,” he was quoted as saying by Malaysiakini.

Syahredzan Johan, lawyer and political secretary to Lim Kit Siang, said the rationale behind the Derbyshire principle was that governments should not block or stop criticism against them by initiating lawsuits.

“In case there is any individual faced with legal action, it’s highly probable that they will not criticise governments. This will stunt democracy in the country.

“Any government has to be ready to face criticism, ridicule or fault finding by ordinary people and not bury protesting voices by using the law,” he said in a statement Thursday (Sept 27).

Syahredzan described the Federal Court’s decision as disappointing and said it would discourage the freedom of expression as well as democratic practices.

In a unanimous decision on Wednesday (Sept 26), Court of Appeal President Justice Tan Sri Ahmad Maarop, who chaired the five-man Federal Court Bench, dismissed an appeal by former Kuching

MP Chong Chieng Jen and ordered the case to be remitted back to the Kuching High Court.

The court affirmed a Court of Appeal ruling that public authorities could sue an individual for defamation, in the suit brought against Chong by the Sarawak government.

Justice Ahmad also said that the Court of Appeal was wrong to rule that Chong, the current Stampin MP, was liable for defamation without hearing his defence.

Other judges on the panel were Justices Tan Sri Hasan Lah, Tan Sri Azahar Mohamed and Tan Sri Aziah Ali. Justice Abu Samah Nordin retired in August this year.

Chong, who is also Deputy Domestic Trade and Consumer Affairs Minister, filed an appeal against the majority decision of the Court of Appeal on April 7, 2016.

The Sarawak government and the state Financial Authority filed the defamation suit against Chong at the Kuching High Court in April 2013.

The suit was over his allegations of “RM11bil disappearing into a black hole” published in a Chinese national daily and a news portal, and in pamphlets distributed by Chong and the DAP.

On reports that the judges had based their judgment on Section 3 of the Government Proceedings Act, Syahredzan said that this provision was only to accord legal status to governments to sue and be sued.

“It does not determine whether governments have the right to sue for defamation or otherwise.

“So, I am of the opinion that Section 3 does not prevent the Derbyshire principle from being applied in Malaysia,” he said.

Syahredzan also urged the federal government to relook the Act to see if it needed to be amended to prevent any government – whether at the federal or at the state level – from initiating defamation suits against individuals.

On Facebook, former prime minister Datuk Seri Najib Tun Razak said if such a decision had been reached during Barisan Nasional’s administration, dozens of activists and Pakatan Harapan leaders would have protested.

“This is because governments have access to vast funds and legal resources to initiate defamation suits against any individual with limited funds and legal resources to defend themselves.

“In many countries like the United States, Britain and Australia, their laws do not allow governments to initiate defamation suits against their own people,” he said.