Can the government sue an individual for defamation?
A landmark Court of Appeal judgment on the matter, which ruled that the government can sue an individual if it has been defamed, has sparked a debate among legal experts in this country.
Detractors think it is a step backwards with regards to free speech and good governance but its proponents argue otherwise, saying that if an individual can sue the government, why can’t the latter do the same?
What the appeals court is saying is that any individual cannot just pass any libellous or slanderous remarks against the government and go unpunished.
But this must be distinguished from acceptable criticism of government policies, which is part and parcel of a mature democracy.
The backers say it is only fair for the government to be allowed the right to take action against those who have “wronged” them, especially if this includes making defamatory statements that undermine the reputation of any public institution.
“Nobody is above the law, not the government and not the individual,” Tourism and Culture Minister Datuk Seri Mohamed Nazri Abdul Aziz was quoted as saying.
“Any person who feels that they have been wronged, or even accused of something they have not done, has every right to sue the individual,” said Nazri, a lawyer by training.
The issue came to the fore recently after the Court of Appeal, in a landmark decision, ruled that both state and federal governments can sue any person for defamatory remarks made against them.
The ruling was made by the country’s second highest court in a case involving the Sarawak government, the Sarawak Financial Authority and DAP’s Bandar Kuching member of parliament Chong Chieng Jen.
The Sarawak government and the Sarawak Financial Authority were appealing against the Kuching High Court’s judgment barring it from suing Chong for his remarks alleging that RM11 billion in public funds had disappeared into a “black hole”.
The court, in a majority judgment, ruled that Section 3 of the Government Proceedings Act 1956 (GPA) does not exclude proceedings in libel or defamation by or against the government.
Justice Datuk Abdul Rahman Sebli said the section gives the government the same right as a private individual to enforce a claim against another individual by way of civil action, adding that this was a statutory right, not a common law right.
In the 28-page judgment, Rahman cited the operative phrase in Section 3, which reads: “...which would, if such claim had arisen between subject and subject, afford ground for civil proceedings.”
This means if a claim affords grounds for civil proceedings between individuals, it will also afford grounds for civil proceedings between the government and individuals.
“Thus, anything that is said about the government that has a tendency to lower its reputation in the estimation of right-thinking members of the public, or to expose it to hatred, contempt or ridicule, will give rise to a cause of action in defamation,” he said.
He noted that he is “not suggesting that the government cannot be criticised”, adding that “what cannot be done, however, is to defame the government”.
A retired Court of Appeal judge has described the decision in declaring that governments can sue an individual as “retrogressive” and “going against the common law principle”.
Datuk Mohd Hishamudin Mohd Yunus, who retired last year, reportedly opined that the majority judgment was also contrary to the principle of good governance.
“With respect, the majority judgment is not only against the established common law principle, it is also retrogressive in nature,” he was quoted by Malaysiakini as saying.
“The government has no shortage of funds if it wants to sue citizens for defamation. But citizens, on the other hand, do not have the same resources to defend themselves,” he said.
But others in favour of the ruling argued that this has always been the accepted position in Singapore.
“Now, it is up to the Attorney-General’s Chambers to initiate action on behalf of the government and the prime minister,” said one senior lawyer.
Several other lawyers also hold a similar view. They said the right of the government to sue is to safeguard its image of transparency, accountability and integrity.
These are important for a government’s reputation as it gives a clear indication of good governance, said one.
To deny the government a right to sue for defamation is to deny it its right to explain and correct injuries to its reputation that may have been caused by malicious reporting or speeches.
“This, of course, must be distinguished from acceptable criticism of government policies, which is part of democracy,” said veteran lawyer Datuk Jahaberdeen Mohamed Yunoos.
“I would suggest that the police and A-G’s Chambers use Section 500 of the Penal Code, i.e. criminal defamation, to address malicious accusations against the government that could have dangerous consequences to the government and the country as a result of the lies and defamatory allegations.”
Section 500 of the Penal Code prescribes offences for criminal defamation. It carries a maximum two-year jail term or a fine, or both, upon conviction.
A veteran newsman, A Jalil Hamid believes that a good journalist should be curious and sceptical at the same time