Malaysian defamation law has received significant judicial deliberation by the apex court over the past few years.
This includes determinations on whether governments, government/public officials, and political parties are able to bring and maintain defamation suits.
In Chong Chieng Jen v Government of State of Sarawak & Anor  3 MLJ 300 (“Chong Chieng Jen“), the Federal Court unanimously upheld the Court of Appeal’s decision and held:
“The right of the government including the State Government of Sarawak to sue including to sue for defamation is statutorily provided under s 3 of [the Government Proceedings Act 1956]. Hence, the English common law principle expounded in Derbyshire does not apply.”
After the decision, the Appellant filed for a review of the Federal Court’s decision pursuant to Rule 137 of the Rules of the Federal Court 1995.
The Appellant was, unfortunately, unsuccessful as another panel of the Federal Court unanimously dismissed the Appellant’s application for review.
The legal position, at the present moment, is that governments can initiate and maintain defamation suits.
In Lim Guan Eng v Ruslan bin Kassim [Federal Court Civil Appeal No. 02(f)-61-07/2019(W)] which was heard together with Lim Guan Eng v Dato’ Ibrahim Ali & Anor [Federal Court Civil Appeal No. 02(f)-61-07/2019(W)] (collectively referred to as ” “), the Federal Court had the following leave question for its determination:
“Does the decision of the Federal Court in Chong Chieng Jen v The State Government of Sarawak  1 CLJ 329 allow a Government Official to sue for defamation in his or her official capacity bearing in mind the decision in Derbyshire County Council v Times Newspaper Ltd & Ors  1 All ER 1011, not being applicable under Malaysian law?”
In Chong Chieng Jen v The State Government of Sarawak  1 CLJ 329, the Federal Court unanimously held that:
i. pursuant to Section 3 of the Government Proceedings Act 1956, Government’s could sue including for defamation; and
ii. the principle in &  1 All ER 1011, that it is contrary to the public interest for organs of government to have a right to sue for defamation, does not apply in Malaysia.
The Appeals were essentially an attempt to clarify whether, in light of Chong Chieng Jen, government officials too have the right to sue for defamation.
Amongst others, the majority of the Federal Court in the Appeals (2-1) were of the view that:
i. the Appellant brought the defamation action personally and not in his official capacity; and
ii. Chong Chieng Jen was irrelevant as it was about the right of the State Government to sue for defamation whereas the Appeals were about an individual’s right, albeit a public official, to sue for defamation.
Notwithstanding the above, the Federal Court allowed the appeal and opined that:
“… a public official must enjoy the same rights as other citizens and be allowed to sue for damages for defamation in any individual capacity whether in relation to personal or official matters. He need not avail himself to the provisions of the Government Proceedings Act 1956. Accordingly, the decision in the case cannot be sustained.” (emphasis mine)
The current position, as per the Appeals, is that government/public officials can bring an action for defamation in their individual capacity in relation to personal or official matters.
The Malaysian Chinese Association, had initiated a defamation suit against Mr. Lim Lip Eng (the Member of Parliament for Kepong) over the latter’s claims that the former had misused Government and public funds allocated for National Type Chinese Schools.
Mr. Lim applied to strike out the defamation suit but was unsuccessful.
On appeal to the Court of Appeal, Mr. Lim was once again unsuccessful.
Mr. Lim then sought leave to appeal to the Federal Court and obtained leave on the legal question whether a political party can maintain a suit for defamation in the light of the decisions in Goldsmith v Bhoyrul (1998) and Rajagopal v Jayalalitha (2006).
Recently, the Federal Court unanimously answered the leave question in the negative and allowed Mr. Lim Lip Eng’s appeal.
The legal position as it stands is that political parties cannot bring an action for defamation.