Witter Yee explains a recent landmark decision of the Federal Court on defamation.
On 26 September 2018, the Federal Court in Chong Chieng Jen v Government of State of Sarawak & Anor
 8 AMR 317 affirmed the majority decision of the Court of Appeal which held that the Government of Sarawak and the State Financial Authority can sue for defamation.
The First Respondent is the Government of the State of Sarawak. The Second Respondent is the State Financial Authority of the First Respondent. The Appellant, the then Vice Chairman of Democratic Action Party (DAP) was a Member of Parliament for Bandar Kuching as well as a member of the Sarawak State Legislative Assembly for Kota Sentosa. The Respondents sued the Appellant for libel, alleging that the Appellant had made defamatory statements concerning mismanagement of the State’s financial affairs.
The statement was published in the Sin Chew Daily on 3 January 2013 and in the DAP’s leaflet, both in Chinese and English. The statement was also published in an online news portal Malaysiakini on 18 March 2013. The DAP’s leaflet contained a drawing of the figure “RM11,000,000,000.00” being sucked into a whirl pool with a black hole at the centre. The statements attributed to the Appellant included the following:
“…Chong said whenever people talked about the lack of facilities, the government always give a lame excuse of not having enough fund (sic) but right unknown to us there is this RM11 billion disappearing into the blackhole. Chong said this proved a point that the state does not have money it’s because state money going somewhere else and Chong warned the state government that they may be able to get away from the Opposition questioning but they cannot get away from the people as a whole.”
The Appellant relied on various defences, such as justification, fair comment, qualified privilege and that the words complained of were not defamatory. The Appellant also contended that the Respondent had no locus standi
to maintain an action for defamation and that it would be contrary to public policy and public interest, and also against common law as well as the principle of freedom of speech and expression, for such an action to be instituted.
DECISIONS OF THE HIGH COURT AND COURT OF APPEAL
On 28 April 2014, the Kuching High Court dismissed the Respondents’ claim on the ground that the right of a State Government or a statutory body to sue does not extend to the right to sue for defamation. The learned Judge relied on the principle expounded by the House of Lords in Derbyshire County Council v Times Newspaper Ltd & Ors
 AC 534 (“Derbyshire”) in coming to this decision. Dissatisfied, the Respondents appealed to the Court of Appeal against the High Court’s decision.
On 7 April 2016, the Court of Appeal by a 2:1 majority held that the Respondents have the right to sue and maintain an action for defamation and allowed the Respondents’ appeal. Dissatisfied, the Appellant sought leave to appeal to the Federal Court.
THE RELEVANT LEAVE QUESTIONS
Leave to appeal to the Federal Court was granted to the Appellant on three questions of law, of which the following two will be discussed in this article:
(1) Whether the Government Proceedings Act 1956 (GPA), and in particular Section 3 therein, precludes the principle in Derbyshire
from being extended to the Government of Sarawak?
(2) Whether Section 3(1)(c) of the Civil Law Act 1956 (CLA) precludes the principle in Derbyshire
from being extended to the Government of Sarawak?
DECISION OF THE FEDERAL COURT
Question 1: Whether the GPA, and in particular Section 3 therein, precludes the principle in Derbyshire from being extended to the Government of Sarawak?
In answering this question, the Federal Court held that our Courts should not import common law from other countries when legislation in Malaysia clearly provides for the principle of law to be applied, as held in Public Services Commission Malaysia & Anor v Vickneswary RM Santhivelu
 6 CLJ 573.
The Federal Court further held that in Malaysia, the right of the Federal Government and State Governments to sue is a statutory right specifically provided under section 3 of the GPA which states:
“Subject to this Act and of any written law where the Government has a claim against any person which would, if such claim had arisen between subject and subject, afford ground of civil proceedings, the claim may be enforced by proceedings taken by or on behalf of the Government for that purpose in accordance with this Act.”
In interpreting the meaning of “written law
” in section 3 of the GPA, the Federal Court held that under section 3 of the Interpretation Acts 1948 and 1967, the definition of “written law” does not
include “common law” which under the said Acts mean “the common law of England”. Thus, the statutory right of the Government to sue in civil proceedings under section 3 of the GPA including for defamation, is not subject to the common law of England.
The Federal Court agreed with the majority decision of the Court of Appeal which held that section 2(2) of the GPA gives a wide definition of “civil proceedings
” to include “any proceeding whatsoever of a civil nature before a court”.
Hence, if an individual makes an allegation critical of a Government, which allegation if made against another individual would afford ground for that other individual to sue, then the Government may sue in defamation.
The Federal Court rejected the Appellant’s contention that the Government has no reputation and hence, is incapable of being defamed. The Federal Court held that in Derbyshire
, the House of Lords decided that a local government corporation could not sue for defamation not because it held that such a corporation had no “governing reputation” but because of the likely chilling effect on freedom of speech of granting a right to sue.
Question 2: Whether Section 3(1)(c) of the CLA precludes the principle in Derbyshire from being extended to the Government of Sarawak?
The Federal Court in answering Question 2 in the affirmative, held that Section 3(1)(c) of the CLA precludes the principle in Derbyshire
from being extended to the Government of Sarawak. In arriving at this decision, the Federal Court relied on the case of Majlis Perbandaran Ampang Jaya v Steven Phua Cheng Loon & Ors
 2 MLJ 389 which held that when a Court is faced with the situation whether a particular principle of common law of England is applicable, the Court has to first determine whether there is any written law in force in Malaysia. If there is, the Court does not have to look anywhere else.
The Federal Court held that the GPA is the specific law in force which governs proceedings by and against the Federal Government and 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 section 3 of the GPA. Hence, the English common law principle expounded in Derbyshire
does not apply.
The Federal Court also rejected the Appellant’s contention that it is contrary to the public interest to accord the government a right to sue for defamation as it infringes the fundamental right of freedom of expression under Article 10(1)(a) of the Federal Constitution (FC). The Federal Court, relying on the Federal Court case of PP v Azmi Sharom
 8 CLJ 921, held that in Malaysia, the right to freedom of speech provided in Article 10 of the FC is not absolute or unfettered as Article 10(2)(a) authorises Parliament to enact laws to impose such restrictions as it deems necessary to provide against contempt of court, defamation, or incitement to any offence.
Having determined affirmatively that the Respondents have the right to maintain an action for defamation, the Federal Court remitted the case back to the High Court for trial to determine whether the impugned words by the Appellant were defamatory of the Respondents and, if necessary, for assessment of damages.
This Federal Court’s decision has raised grave concerns among academicians, members of the press and the legal fraternity that allowing the Federal Government and State Governments to sue for defamation would stifle criticism of such bodies for fear of legal action.
The promises in the Election Manifesto of the present Government for the 14th
Malaysian General Elections include a guarantee of freedom for the media to act as a check and balance to the Government as well as the promise of freedom of speech in institutions of higher learning.
To fulfil the aforesaid election promises and to promote a broader right of freedom of speech and expression, the Malaysian Parliament should consider giving statutory recognition to the Derbyshire
principle by amending Section 3 of the GPA to exclude the right for the Federal Government and State Governments to take action for defamation.