BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)
THE Malaysian Anti-Corruption Commission (MACC) recently threatened to take action against the chief minister of Penang. It complained that he had defamed the institution by alleging that it was wrong to charge a state minister.
MACC is a public institution carrying out public functions. Its head is appointed by the King on the advice of the prime minister – which essentially means the government. He holds office at the pleasure of the King – which under our constitutional structure again means the government via the prime minister.
This raises an interesting question. Can a public institution sue for defamation when it is criticised, however harshly?
A 2016 Court of Appeal decision ruled that a state government could sue for damages for defamation. This was a 2-1 majority decision – with one strong dissent. In this case a Sarawak state assemblyman alleged that the state had mismanaged its financial affairs causing loss of billions of ringgit of public funds. (Government of the State of Sarawak v Chong Chieng Jen).
Shortly after, another panel of the Court of Appeal unanimously ruled otherwise. It said no such cause of action lies against a public official conducting the affairs of the state. In this case the court dismissed an action for damages for defamation brought by the Pahang mentri besar in respect of an article which criticised the state for running the state miserably and failing its people. (Utusan Melayu Sdn Bhd v Dato Sri Adnan bin Haji Yaakob).
Under our court system these two courts are of the same status. This means one panel of the appeal court cannot overrule another panel of the same court. So this issue remains to be resolved by the apex Federal Court.
What should the correct position be?
While courts have sought to resolve this issue under common law (the general law of the land) or under some act of parliament, the Utusan decision went beyond these bases. It said that a more fundamental right was at stake – and this was the right of freedom of speech to criticise those carrying out governmental functions. This is how Justice Idrus Harun delivering the judgment of the court (comprising Justices Rohana Yusuf and Mary Lim) put it in a masterly analysis:
“We would say that the principle clearly emanates from and is already well-entrenched in article 19(1)(a) of the Federal Constitution which guarantees the right to freedom of speech and expression which right in our judgment encompasses the right of the citizens to discuss the government and those holding public office of the respondent’s position conducting public affairs and administration of the state. On that score, and as public interest dictates, a democratically elected government and its officials should be open to public criticism and that it is advantageous that every responsible citizen should not be in any way fettered in his statements where it concerns the affairs and administration of the government. Any action to the contrary would in our view, be against public interest and directly affect the fundamental right guaranteed by article 10(1)(a) of the Federal Constitution unless it is clearly allowed by federal law.”
The court approved the dissenting judgment of Justice David Wong in the Sarawak case – thus numerically four judges of the appellate court against two have decided that a public authority cannot sue a citizen for defamation.
Decisions elsewhere have taken much the same approach.
In England, a unanimous 1993 decision of five law lords – including Lord Goff and Lord Browne-Wilkinson, two of the greatest judges of the post-war era, came to this conclusion in a comprehensive review of domestic and foreign case law. They upheld freedom of expression as a principle of “the highest public importance”. (Derbyshire County Council v The Times Newspapers Ltd.)
The Sarawak case also relied on a provision in the Government Proceedings Act. But it says no more than that a governmental body has the power to do what individuals may do. It does not create a right of action in tort. Neither does it refer to public policy (openness, transparency) or the impact on constitutionally protected rights.
Further, only clear and explicit words can abridge a fundamental right. With respect, the absence of a provision cannot be the basis for eroding a fundamental constitutional right – as worryingly held by the Sarawak decision.
Note that individual officers wrongly maligned can sue for defamation in a personal capacity, but not the authorities themselves.
As the Federal Court mulls over this issue, it is well to reiterate the “chilling” effect on public criticism of governmental bodies. Surely, in a democratic set up, ultimately the best vindication of reputation is the conduct of the authority itself.
Gurdial is a former law professor and currently a legal consultant as well as Deputy President of HAKAM.