The Federal Court will hear whether federal and state governments can sue individuals for defamation.
This follows a decision Wednesday by a three-man bench chaired by Suryadi Halim Omar to allow a leave application by the DAP’s Bandar Kuching MP Chong Chien Jien.
The Sarawak government also did not object to the leave questions posed as it involved issues of public importance.
However, the bench only allowed three questions to be argued at the appeal stage later.
Ranjit Singh appeared for Chong while Sarawak Deputy Attorney-General Talat Mahmood represented the state.
The court also allowed applications by the Sarawak Advocates Association and the Malaysian Bar to participate during the appeal hearing as friends of the court (amicus curiae).
In April, the Court of Appeal, in allowing an appeal by the Sarawak government, said the Government Proceedings Act, (GPA) 1956 did not exclude proceedings in libel or defamation by or against the government.
Justice Abdul Rahman Sebli, who wrote the majority judgment, said that provision gave the government the same right as a private individual to enforce a claim against another individual.
“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.
“It is the same test that is applicable in a claim for defamation between private individuals,” Rahman had said in the 28-page judgment.
“We are not suggesting of course that the government cannot be criticised. It can and that right to criticise must be protected as it is a symbol of a functioning democracy. What cannot be done however is to defame the government,” he said.
Justice Zamani A Rahim concurred with Rahman.
Previously, courts had ruled that the government or its bodies could not sue as it was “not a living thing.”
Justice David Wong Dak Wah, who dissented, said the legal principle established in the Derbyshire County vs Times Newspapers Ltd case also applied here.
In that case, decided in 1993, the court had ruled that local authorities could not institute legal action based on criticism.
Wong also said the Sarawak government’s decision to sue a citizen went contrary to the freedom of speech in the Malaysian Constitution.
The Sarawak government and the state financial authority had filed the defamation suit in 2011 over an allegation by Chong that RM11 billion in public funds had disappeared into a “black hole.”
Chong had then filed a preliminary objection to say the Sarawak government had no locus standi to file the defamation suit.
The Kuching High Court allowed Chong’s objection and struck out the state government’s suit, citing the Derbyshire County vs Times Newspapers Ltd case.
At the appeals court, apart from allowing the appeal by the government on the preliminary objection, the majority judgment also made a ruling on the merit of the case without going to trial.
Rahman and Zamani ordered Chong to pay damages which was to be assessed by the High Court in Kuching.