Can the Government Sue for Defamation?

In modern democratic societies, fundamental rights are sacrosanct to each and every one of us. Some have considered freedom of expression and speech to be part of those fundamental rights. This is certainly the case in Malaysia in light of freedom of expression being protected by Article 10 of the Federal Constitution.

However, just like any other freedom, there are limits to the extent of freedom of expression such as the laws relating to defamation and sedition. In light of the increasing use of Whatsapp and Facebook, criticisms and comments against the Government are appearing in the public sphere almost on a daily basis.  This gives a new dimension to defamation actions especially those initiated by the Government or political personalities.

We look at a number of recent cases which have discussed the rights of a Government to sue for defamation.

In July 2017, MCA Secretary-General, Ong Ka Chuan filed a defamation suit on behalf of MCA against Kepong Member of Parliament (MP), Lim Lip Eng over remarks made at a press conference in a Parliament building. After failing to strike out the claim in the High Court and the Court of Appeal, the MP successfully obtained leave to the Federal Court on the following legal question: whether a political party can maintain a suit for defamation.

In obtaining the leave at the Federal Court, it was argued on behalf of the MP that registered societies including political parties such as MCA cannot file defamation suits on the basis that political parties, unlike individuals, have no reputation to protect.  It was further argued that a political party’s position was similar to that of the government under the Government Proceedings Act 1956 (“GPA”), who can only be sued or sue for other civil actions.

Prior to this, the law in Malaysia particularly the Defamation Act 1957 and the GPA, does not expressly confer any right on the Government to sue for defamation. The rationale behind the absence of such right is that a democratically elected government and its officials should be open to public criticism. To allow the Government and public officials to sue for defamation would amount to the stifling of the citizen’s freedom of speech.

The position has changed since the Federal Court case of Chong Chieng Jen v Government of State of Sarawak & Anor [2019] 3 MLJ 300. In that case, the Appellant, an opposition state assemblyman and Member of Parliament, alleged that the Sarawak State Government has mismanaged the financial affairs of the state. The Appellant’s allegations were published in newspapers, a leaflet of his political party, and also on an online news portal.

 During the course of hearing, the parties referred to the landmark case of Derbyshire County Council v Times Newspaper Ltd & Ors [1993] AC 534, where the House of Lords held that although it recognized the right of a state government or statutory body to sue and be sued, nevertheless, it does not extend to the right to sue for defamation. This principle was adopted and followed in various commonwealth jurisdictions including Malaysian, South Africa, India, Singapore and England over the decade.

The Federal Court decided that the Derbyshire principle is not suitable for application in Malaysia by virtue of the existence of written law, specifically Section 3 of GPA. Section 3 provides both federal and state governments with a statutory right to initiate civil proceedings. This includes the right to sue for defamation. It was not subject to the Derbyshire principle which is derived from the common law of England because there is already an express law in Malaysia which deals with the Government’s ability to sue for defamation:

[45]  So, it is clear that when faced with the situation whether a particular principle of the common law of England is applicable, first, the court has to determine whether there is any written law in force in Malaysia. If there is, the court does not have to look anywhere else. In the present appeal, the answer to the question must be in the affirmative. As has been shown earlier, Act 359 [GPA] is the specific law in force which governs proceedings by and against the federal government and the state governments including the State Government of Sarawak. 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 Act 359. Hence, the English common law principle expounded in Derbyshire does not apply.

We have to contrast this with the position taken by the minority in the Court of Appeal which held that there is no basis to depart from the Derbyshire principle for our local defamation actions:-

“Hence, I see no reason why we should not adopt the Derbyshire principle in our defamation law as it would be consistent not only to art 10 of the Federal Constitution but to all the hallmarks of a modern democracy. Those hallmarks, among others, relate to the need for accountability, the need for transparency, the need for freedom of expression and the need for a healthy and responsible fourth estate.

In another case, Utusan Melayu (M) Bhd v Dato’ Sri DiRaja Hj Adnan bin Hj Yaakob [2016] 5 MLJ 56, the Appellant, published an article which imputed the Respondent failed to carry out his duties as the Menteri Besar of Pahang. The High Court held that the respondent had locus standi to sue in his personal capacity as his name was cited without his official position as the Menteri Besar, which then triggered an appeal to the Court of Appeal.

Court of Appeal allowed the appeal and held that every citizen has the right to exercise the right to freedom of speech and expression as enshrined in Article 10(1)(a) of the Federal Constitution which includes the right to discuss about their government and public officials so long as it is subject to and within the permissible restrictions of the law.

The Court of Appeal was of the view that the absence of a clear provision in allowing the government or any individual members in the government to sue for defamation significantly shows that the constitutional right under Article 10 remains intact. The Court of Appeal held as follows: -

“The Derbyshire principle is also based on the fundamental right of freedom of speech and expression under the English common law. In Malaysia, the right of freedom of speech and expression is guaranteed by art 10(1)(a) of the Federal Constitution. Such right is essential to members of the public to act as a check and balance of the Executive or government conducting or managing public affairs of the government, without fear of being called to answer civil action for defamation. Besides, the Federal Constitution, being the supreme law of the land must be given its full effect in the event of any conflict with the other legislations.”

The matter then went to the Federal Court on the applicability of the Derbyshire principle. However, the Federal Court decided that it was premature to hear the appeal before the merit of the case was heard.  The Federal Court then remitted the case back to the High Court for it to go for a full trial.

Based on the above cases, there is clearly a conflict between the applicability of the Derbyshire principle and the use of Section of GPA to exclude the same.

It cannot be disputed that Section 3 of the GPA enables the Government to initiate a civil action by way of court proceedings. However, this can be argued to be merely a provision explaining how a Government can initiate proceedings. Such right to sue is however not an absolute one. It must be read together with Section 39 of the GPA which provides the right of the government to sue arises only when the written law provides for a specific right of action. This was decided by Court of Appeal in the case of Kerajaan Malaysia v Ambiga Sreenevasan & Ors [2016] 5 MLJ 721.

If the government is allowed to sue individuals for defamation, the public would be prevented from expressing their opinion and criticisms due to the fear of a defamation suit.  This would not be in line with the values of democracy where the government relies on public votes to be in power. Undeniably, allowing public grievances and criticisms would protect freedom of speech. It would also enable the Government to improve their performances and be accountable to the public.

As it stands, there is no express law that entitles the Government to sue for defamation as explained above. Section 3 of the GPA does provide such an express right. Even if it does, the question would then be: Does the Government have a reputation to begin with? If it has no reputation, then a government cannot be defamed. Clearly, this is one area of law which is ripe for further determination and consideration by our courts.