WE love talking about shortcomings in how the country is run. But what kind of national conversations about the government can we have if we are under ominous clouds of potential civil lawsuits?
It feels more than a little absurd to worry about the authorities suing any of us for defamation, but we now cannot be utterly dismissive about that possibility.
A recent apex court ruling has confirmed that the federal and state governments have the right to initiate such civil proceedings against individuals.
So where does that leave us?
Should we be less free with our views for fear that thin-skinned public officials cannot tell the difference between earnest criticism and malicious falsehood?
Do we shrink from outspokenness to avoid the risk of ending up in a court battle with an adversary whose money and manpower is far more than ours?
Surely that cannot be right. And yet, we know from many examples in the past that when there is a legal avenue, there is always a chance that somebody will say, “Why not use it?”
So it is cold comfort when Mohamed Hanipa Maidin, the Deputy Minister in the Prime Minister’s Department whose portfolio is law, assured the public on Friday that the government was not in a hurry to sue anyone for defamation following the Federal Court decision. But he did say something else that sounds more promising.
According to Hanipa, the Pakatan Harapan government will push for a change in the law that will address the issue.
The key piece of legislation here is the Government Proceedings Act 1956 (GPA). A 2016 Court of Appeal judgment describes the Act as “a special statute specially promulgated by Parliament to give the Federal and State Governments the right to commence civil proceedings against any person.”
“We are going to have a meeting and form a committee to study the matter. This includes taking into consideration recommendations made on the issue and the Derbyshire principle,” Hanipa told reporters.
The Derbyshire principle is a cherished common law principle in the United Kingdom that says a government should not sue for defamation because such an action is against the public interest.
This came from Derbyshire County Council’s suit against Times Newspapers Ltd over two articles in The Sunday Times in September 1989 that questioned the propriety of investments that the local authority made on behalf of its superannuation fund.
The council sued for libel and sought to recover damages. The case made its way to the House of Lords, back when it was the UK’s court of last resort.
Deciding that freedom of speech is more important than protection of the local authority’s reputation, the House ruled in favour of the publisher.
It was reported that Wednesday’s landmark decision by our Federal Court ruled that the Derbyshire principle is not applicable as there are existing laws available, including the GPA.
However, lawyers and civil society groups say the Act was enacted before Merdeka and does not take into account Article 10 of the Federal Constitution, which guarantees freedom of speech and expression.
Also, they argue that while Section 3 of the GPA grants the government the right to sue regarding civil matters, they do not believe that it had been envisaged that these matters include defamation.
Another counterpoint to the judgment is that instead of initiating civil action, the government can rely on other laws to institute criminal proceedings if it feels that allegations made against the authorities are truly damaging to the nation.
Of course, these points and many others have been argued and weighed en route to the Federal Court judgment.
But now they ought to be rigorously evaluated by the committee that the government intends to set up to study this development.
Hopefully, the committee will come up with measures to ensure that federal and state governments do not use its considerable legal firepower to restrict every citizen’s right to freedom of speech and expression.
A great starting point for the committee are these words from the House of Lords judgment on the Derbyshire case: “It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism.
“The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech.”