KUALA LUMPUR, Sept 27 – The implications of the Federal Court ruling yesterday on federal and state governments being allowed to sue an individual for defamation are far reaching.
So much so, that even prime minister Najib Razak weighed in on the ruling.
Najib took to Facebook to say that if Barisan Nasional was in power today, activists, NGOs and Pakatan Harapan leaders would have called the court’s decision politically-motivated, against the freedom of speech, against democracy, draconian, unfair and dangerous.
“In fact, I would have been blamed, when it is the court’s decision. But till now, not a single PH leader has commented about today’s ruling, which has a big impact.
“This is because the government has huge funds and legal power to sue for defamation any individual who does not have such facilities at their disposal to defend themselves,” Najib said.
He added that in countries like the US, United Kingdom, and Australia, laws do not allow their governments to sue their citizens.
“Therefore, today’s ruling may provide a big room for PH to threaten the freedom of speech, and the right to criticise, either the Federal, or state governments.”
Lawsuit against Sarawak DAP chief
Ironically, the case reached the apex court by way of an original summons against Sarawak DAP chairman Chong Chieng Jen by the state government and state financial authority in 2013.
In April 2013, Chong was sued over his allegation that RM11 billion of state funds had “disappeared into a black hole”, as published in a Chinese national daily and a news portal.
In striking out the lawsuit by the Sarawak government, the Kuching High Court ruled that the plaintiffs were not allowed under common law to sue Chong for defamation, even though his words against the government were defamatory.
On April 6, 2016, the Court of Appeal overturned the ruling saying that the government had the right to sue for defamation under the Government Proceedings Act 1956. In a majority judgment, the court had ruled that common law which prohibited a government from suing an individual did not apply in Malaysia.
Chong then appealed to the Federal Court and saw his efforts come to an end yesterday with the five-man Federal Court bench dismissing his appeal in an unanimous decision.
Now people cannot criticise, question governments, says retired judge
Interestingly, back in April 2016, the highly-respected Mohd Hishamudin Yunus, a former judge of the Court of Appeal who retired in 2015, had called the Court of Appeal’s ruling allowing for the government to sue an individual as “retrogressive and going against the common law principle, and that it goes against the principle of good governance”.
Hishamudin was recently appointed to the Judicial Appointments Commission in a move that was lauded by many lawyers and other political observers.
He too had argued then on the government’s resources being unlimited against that of individuals, when it comes to taking court action.
“Thus, the people will be discouraged from criticising and questioning the government. The majority judgment, therefore, is not in consonance with the citizens’ freedom of speech and the principle of good governance,” Hishamudin was reported to have said.