Recent Federal Court Decisions on Defamation Law

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.

Governments

In Chong Chieng Jen v Government of State of Sarawak & Anor [2019] 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.”[1]

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.[2]

The Appellant was, unfortunately, unsuccessful as another panel of the Federal Court unanimously dismissed the Appellant’s application for review.[3]

The legal position, at the present moment, is that governments can initiate and maintain defamation suits.

Government Officials

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 [2019] 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 [1993] 1 All ER 1011, not being applicable under Malaysian law?”[4]

In Chong Chieng Jen v The State Government of Sarawak [2019] 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;[5] and

ii. the principle in & [1993] 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.[6]

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;[7] 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.[8]

Notwithstanding the above, the Federal Court allowed the appeal[9] 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.”[10] (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.

Political Parties

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.[11]

Mr. Lim applied to strike out the defamation suit but was unsuccessful.[12]

On appeal to the Court of Appeal, Mr. Lim was once again unsuccessful.[13]

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).[14]

Recently, the Federal Court unanimously answered the leave question in the negative[15] and allowed Mr. Lim Lip Eng’s appeal.

The legal position as it stands is that political parties cannot bring an action for defamation.

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Developing A Litigation Culture

Malaysian Prime Minister, Datuk Seri Najib Razak, through his lawyers has issued a letter of demand to PKR’s Rafizi Ramli and DAP’s Tony Pua over a few things the outspoken duo have said in recent times 

Our premier wants Tony Pua to publish a retraction and apologise within 14 days in two national newspapers, or face legal action for his speech recorded in the November 3 video: “Tony Pua: Najib is creating the biggest scandal ever in the history of Malaysia

Failure by Rafizi and/or Tony Pua to act as per the letter of demand would most definitely result in legal action being initiated against them

Some netizens take this as a sign of cowardice on the part of Najib because it comes across as an act to scare off his detractors. I, however, think it is a good thing that Najib wants the courts to adjudicate what has been said by the two Pakatan Rakyat leaders regarding the reduction of fuel subsidies and the 1Malaysia Development Berhad (1MDB) respectively

I say so because if the issue reaches the courts, evidence will be have to be submitted by both parties. Through that and the court’s ruling, the people can ascertain objectively who is actually correct/telling the truth.

Does the money saved from the reduction of petrol subsidies go into Najib or Rosmah’s pocket? We will most assuredly find out. Regarding 1MDB, is there any hanky-panky use of the people’s money? We will undoubtedly find out

If Mrs Donoghue did not sue the manufacturing company of the ginger beer after finding a decomposed snail in her drink we would not have the landmark case of Donoghue v Stevenson

In that case, Lord Atkin established the all important ‘neighbour principle’ and it revolutionised the tort of negligence as we know it today.

This shows us that case law is an important contributor to the development of the law as it ensures that the law stays relevant in light of changing social, economic and cultural conditions

Moving on, the freedom of speech does not include the right to defame a person. Therefore, if Rafizi has no evidence to support his claim that Najib or Rosmah would directly/indirectly benefit monetary wise from the reduction of fuel subsidies, he should be liable for defamation

In Tony Pua’s case, he gave some immensely mind boggling statistics. However, if he does not have any solid admissible evidence to back his allegations about 1MDB, he would have to fork out a lot of money to compensate Najib for the “tremendous stress and embarrassment” caused

If Najib wins his lawsuit(s) against Rafizi and/or Tony Pua, the enormous amount of damages usually awarded in defamation cases should act as a precedent to teach our leaders to speak only when they have proof to attest to their claim.

If our public figures do not learn that lesson, we’d have more and more Mashitah cases whereby the irresponsible person speaks unsubstantiatedly and then gets whacked left, right and centre (metaphorically) by the public

In conclusion, while Dr Mahathir is of the opinion that taking legal action for political slander is useless, i beg to differ for the aforementioned reasons. The way I see it, litigation over controversial issues would be beneficial for the common folk who ardently follow our nation’s politics. Developing a litigation culture is good to a certain extent

*Check this awesome article out at The Malaysian Insider, The Malay Mail Online, and Free Malaysia Today