MAY 1 — Five years ago, in the case of Chong Chieng Jen v Government of State of Sarawak & Anor [2019] 3 MLJ 300, the Federal Court held that the government has a statutory right to sue under Section 3 of the Government Proceeding Act 1956 (GPA 1956).
It was held that the act confers the right to the government, including public entities, to have the right to sue, since nothing under the section can construed to prevent the government from taking civil action on defamatory.
This departs Malaysia from the common law principle established in the case of Derbyshire Country Council v Times Newspaper Ltd & Ors [1993] AC 534. Here, the House of Lords ruled that the government bodies, either central or local do not have the right to maintain an action for damages for defamation as it would be contrary to the public interest for the organs of the government to have the right because it is of the highest importance that a government body should be open to uninhibited public criticism, and the right to sue for defamation would not only have a chilling effect but would also place an undesirable fetter on the freedom of speech.
The court pointed out that GPA 1956 is a special act that Parliament passed to give the Federal and State Governments the right to begin civil proceedings against a person. It provides the same right as a private individual to enforce a statutory right claim.
The second important decision was on the cut-off date. Section 3 of the Civil Law Act 1956 directs the courts to apply the common law of England only in so far as the circumstances permit and save where no provision has been made by statutory law. Hence, it was held that the development of the common law after 7 April 1956 (West Malaysia) is entirely in the hands of the court of this country.
It was also prevented that even though common law countries have received the Derbyshire principle, its law is not monolithic, since statutory provisions can always repeal it.
Third, regarding the freedom of speech, it was said that freedom is guaranteed under Article 10 (1)(a) of the Federal Constitution, however it is subject to the restriction placed under Article 10(2)(a), which provides for Parliament to enact law that deems necessary, this includes defamation.
This landmark decision is said to be a setback development of our laws and liberty where the people can freely comment and criticise the government.
However, one must remember the freedom or right to criticise has limits, and one should not go to the extent of slandering the government.
In a democratic system, people are free to uphold their rights and ensure that their leaders are accountable for the wrongdoings happening in the country.
Those rights come with responsibility.
But not by defaming.
*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
