‘Change old law or wither democracy’

  • Nation
  • Friday, 28 Sep 2018

Justice for all: People walking past the Palace of Justice in Putrajaya as lawyers call for change to GPA 1956.

PETALING JAYA: A 62-year-old law needs to be changed to ensure our federal and state governments cannot sue a person for defamation. This is to counter a landmark judg- ment by the Federal Court that has raised fears that freedom of speech in Malaysia may be jeopardised.

Lawyers, politicians and civil groups are calling for the Government Proceedings Act 1956 (GPA) to be amended to prevent the government from filing defamation lawsuits against individuals, which many say will deter the public from criticising the authorities.

Lawyer Syahredzan Johan, who is political secretary to DAP adviser Lim Kit Siang, said the rationale behind the Derbyshire principle (a common law principle based on a British case) was that governments should not block or stop criticisms against them by initiating lawsuits.

(The Derbyshire principle states that a public body has no legal standing to mount defamation suits.)

Syahredzan pointed out that it is highly probable that an individual facing such legal action will not criticise the government.

“This will stunt democracy in the country,” he added.

“Any government has to be ready to face criticism, ridicule or fault-finding by the ordinary people and not bury protesting voices by using the law,” he said.

He described the Federal Court’s decision as disappointing and added that it would discourage freedom of expression and democratic practices.

On reports that the judges had based their judgment on Section 3 of the GPA, he said the 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 in a statement.

In a unanimous decision on Wednesday, a five-man Federal Court Bench, chaired by Court of Appeal President Justice Ahmad Maarop, dismissed an appeal by former Kuching MP Chong Chieng Jen and ordered his 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 him by the Sarawak government.

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

Chong, who is now 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.

Centre For A Better Tomorrow (Cenbet) co-president Gan Ping Sieu has also called for change in the GPA, saying the court decision would stifle the freedom of speech of those who raise legitimate concerns on matters of public importance.

“Allowing the resource-rich government to sue or threaten to sue individuals and organisations is an affront to freedom of speech and can lead to a totalitarian state,” Gan said in a statement yesterday.

He said the court would have a chilling effect on the right to freedom of speech as guaranteed by Article 10 of the Federal Constitution.

He added that it was outrageous that the government, with its unlimited resources, could use taxpayers’ money to file defamation suits.

Gan said the court had construed the GPA in contradiction of freedom of speech under the Federal Constitution.

N. Surendran, adviser of rights group Lawyers for Liberty, said there should be amendments to the GPA to bring it in line with the Constitution.

“It is a pre-Merdeka law and the court’s decision should have been subjected to the right of freedom of expression under the Constitution,” he said when contacted.

Surendran also called on the government to review the court’s decision.

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