12/11/2019 1 Comment
The Derbyshire principle has always protected citizens from actions of defamation in the wake of governmental dissent or issues raised against the government. However, this protection has since been removed in Malaysia
Gone are the days for detractors to make statements against the Malaysian Government without fear. In its recent ruling of Government of Sarawak v Chong Chieng Jen, the Federal Court has made a definite yet controversial decision to lift the ban for the government or public authorities to sue its citizens for defamation. The government can now launch a legal suit on defamation against any normal citizens.
This overruled principle, commonly known as the Derbyshire principle, originates from the House of Lord’s decision of Derbyshire County Council v Times Newspaper in 1993. It has since served as a principle to deny governmental body’s right to sue for defamation in common law countries.
The Derbyshire principle has grown to be a loyal guardian of the public’s freedom to criticise the government without fear of a defamation suit — a fundamental principle in a democratic society. Most of the common law jurisdictions share the same stream of jurisprudence on this matter, Malaysia included. Hence, the decision in Government of Sarawak v Chong Chieng Jen, which overruled the Derbyshire principle, opens the gate for legal repercussions in criticising the government. This article aims to discuss the development of the Derbyshire principle in Malaysia before and after the decision of Chong Chieng Jen, together with a commentary on the impugned case.
II. DERBYSHIRE PRINCIPLE IN MALAYSIA
Our courts are generally obtuse in recognising the principle laid down in Derbyshire. There was no similar issue raised or brought to the attention of the courts in our jurisdiction until recent years. To quote some examples, Petroliam Nasional Bhd & Ors v. Khoo Nee Kiong and Perbadanan Johor & Ors v. Syed Hussein Alattas & Ors have allowed the plaintiffs, being the body corporates performing public service, to maintain an action for defamation as if they were individuals. The issue of locus standi was not raised in both cases.
Only in 2012, in the case of Lembaga Tanah Persekutuan and Anor v Dr Tan Kee Kwong, did the defendant counsel raised the issue that the plaintiff, being a statutory authority, does not have the capacity to sue others for defamation. This marked the first Malaysian superior court decision which cited the Derbyshire principle.
In rejecting the importation of the common law principle into Malaysia, the court acknowledged that there is a real and pressing public interest to protect the reputation of a public authority. This is to safeguard its ability to obtain loans, borrow money, tender for contracts, or attract the public to be part of the staff of such body.
After considering the unique legal provisions, specific needs, and multi-racial sensitivities of our society, the court refused to adopt such principle. The learned judge also noted that the Derbyshire principle only applies when the local or central government is ‘democratically elected’, so it would exclude all unelected government of other jurisdiction.
On appeal, the Court of Appeal affirmed the trial court’s decision:
‘With respect, we do not find any justification for applying the Derbyshire County Council principle here. In particular, section 15(1) of the Act (Land Development Act) gives the appellant the right to sue and be sued. It would be preposterous for the court to take away a statutory right by the application of English common law principles. Even section 3(1)(a) of the Civil Law Act which allows the application of English common law does not contemplate its application beyond what is administered on 7th day of April, 1956.’
Subsequently, in a Court of Appeal decision of Tony Pua Kiam Wee v Syarikat Bekalan Air Selangor Sdn Bhd, the court again recognised the right of a body corporate with public functions, as a private company, to sue for defamation.
It is pertinent to note that in the above two cases, the plaintiffs are statutory bodies which do not arguably fall within the ambit of ‘public authority’. The question as to whether the court would have decided differently if the plaintiff was an elected public authority still loomed in uncertainty.
Perhaps that was why the Derbyshire principle was accepted in the case of Kerajaan Negeri Terengganu & Ors v Dr Syed Azman Syed Ahmad Nawawi & Ors (No 1) and Kerajaan Negeri Terengganu & Ors v Dr Syed Azman Syed Ahmad Nawawi & Ors (No 2).
The rationale in both cases are similar — that the Parliament has yet to enact any law which explicitly allows the federal government or state government to institute civil proceedings for libel or slander against other entities. This is in the backdrop of many enacted Acts that restrict one’s freedom of speech. Even the Defamation Act 1957 is silent on the issue of whether a government should be allowed to maintain an action of defamation. This pronounced silence in legislations has enabled the court to adopt apposite common law into our jurisdiction, which is the Derbyshire principle in our case.
Another remarkable proposition laid down in the former case is that a public authority has no personal reputation to protect and that the government should take other judicial recourse to deal with a situation where there is evidence of defamation:
‘… the Government of the State of Terengganu, is a public authority. As such it does not have a personal reputation to protect. Neither does it have a governing reputation, as in the case of a corporation or statutory body/authority, to protect…In a situation where there is evidence of defamation, the offender can be prosecuted by the public prosecutor for criminal defamation under s 499 of the Penal Code.’
Another salient case to be included in this article is the Court of Appeal decision in Utusan Melayu (Malaysia) Berhad v Dato’ Sri Diraja Haji Adnan bin Haji Yaakob. The judgment has enumerated that a governmental body must be open to public criticism in a free democratic society and could never be defamed, therefore, ought to be precluded from suing for defamation. Public interest considerations played an imperative role in reaching to this judgement:
‘…it is one of the fundamental principles that, in the exercise of the right to such freedom within the ambit of the Federal Constitution and other relevant laws, the public should have the right to discuss their government and public officials conducting public affairs of the government without fear of being called to account in the court for their expressions of opinion (City of Chicago v The Tribune Company). It does indeed go without saying that so far as the freedom of press is concerned, it flows from the right to freedom of speech and expression as guaranteed by art 10(1)(a) of the Federal Constitution the exercise of which shall at all times be protected and respected but subject to and no more than the permissible restrictions as may be imposed by federal law with clear and unequivocal language pursuant to art 10(2)(a) thereof.’
The court in this case also conceded that, although the government does have a reputation to protect, there are other appropriate recourse to protect it from malicious falsehood. The government may simply dispose of the truth or prosecute the responsible body with the Sedition Act 1948, the Penal Code, the Printing Presses and Publication Act 1984, or the Communications and Multimedia Act 1998.
Essentially, the public policy considerations are to prevent the suppression of free speech by self-censorship:
‘We indeed consider the potential chilling effect on free speech should this appeal be dismissed… would in our view allow persons holding public office to initiate a suit of this nature against any statement critical of them in their office which in consequence ‘may prevent the publication of matters which it is desirable to make public’ and no critical citizen can safely utter anything but faint praise about the public officials… This will sadly result in political censorship of the most objectionable kind.’
Such was the position of law before the latest case of Chong Chieng Jen. Similar to other previous cases, the plaintiffs in this case sued the defendant for libel. The plaintiffs alleged that the defendant had made defamatory statements on the alleged mismanagement of the state finance affairs. The issue raised by the defendant was whether the first plaintiff, being the State Government of Sarawak, and/or the second plaintiff, being the Government Department and an organ of the Government, have the right to sue and to maintain an action for damages in defamation against the defendant.
The court rejected the Derbyshire principle because the wordings in S.3 of the Government Proceedings Act 1956 (‘GPA’) clearly confer the right to the Federal Government and the Government of the States to sue. Specifically, nothing under the section can be construed to preclude the Government from taking civil action for defamation.
The court also referred to S.3(1) of the Civil Law Act 1956 (Act 67) to support the contention that when there is written law in force in Malaysia, the court need not look elsewhere but to apply our written law. In this case, Act 359 was said to be a specific law in force governing the matter in trial here. Hence, there is no room for the importation of the Derbyshire principle.
In regard to the freedom of speech, the court held that the freedom guaranteed under Article 10(1)(a) of the Federal Constitution is subjected to the restriction under Article 10(2)(a), which provides authority for the Parliament to enact laws it deems necessary to provide for, inter alia, defamation or incitement to any offence.
The decision in Chong Chieng Jen was a sledgehammer on the precedents that affirmed the Derbyshire principle. The applicability of the Derbyshire principle in our jurisdiction has been overruled by the sweeping impact of this apex court decision. Chong Chieng Jen has granted the government the locus standi to sue any other individual for defamation in a civil action.
III. COMMENTS ON THE DECISION OF CHONG CHIENG JEN
The apex court decision of Chong Chieng Jen has relied on multiple reasonings mentioned earlier to support its decision in rejecting the Derbyshire principle. However, it is the authors’ humble opinion that these reasonings are flawed.
To begin with, S.3 of the GPA merely provides a blanket rule that allows the government to have a claim which will ‘afford ground for civil proceedings’ against any person. It is general, neutral, and preliminary. As pointed out by the High Court in Dr Syed Azman Syed Ahmad Nawawi, it only begs the next question to be answered — would libel afford a ground for a governmental body to initiate civil proceedings?  This interpretation was similarly agreed by JCA David Wong Dak Wah in his dissenting judgment in the Court of Appeal decision of Chong Chieng Jen, in which His Lordship asked the crucial question —notwithstanding that the government can mount any legal action in any civil proceedings, does the government have a cause of action in this case? His Lordship further elaborated:
‘In my view section 3 of GPA is a general piece of legislation to cloth the Government the legal status to sue or be sued, nothing more or nothing less. It only gives the Government the statutory right to mount any legal action in any civil proceedings which are available to and among private citizens of the country. However, that does not answer the second half of the question and that is whether the Government possess a “cause of action” in an action for defamation.’
S.3 of the GPA only prompts us to search for a substantiated answer on this matter by looking beyond this general provision. It in itself cannot be the answer. The authors respectfully submit that the Federal Court in Chong Chieng Jen has jumped the gun by mistaking the question as the answer.
This interpretation on the GPA is backed by the response of the Minister of Law in the United Kingdom (UK) to a similar conflict between the Derbyshire principle and a legislation that grants the government a general power to pursue civil action in the UK. In 2012, Ruthland County Council publicised their intention to take legal action on the ground of defamation upon legal advice which was that there exists a standing afforded by the Localism Act 2011. Bearing high resemblance to the GPA, S.1 of the Localism Act 2011 confers a general competence to governmental authority to be able to ‘do anything that individuals generally may do.’
Though this case did not proceed before a court, the Minister of State at the Ministry of Justice, Lord McNally, responded to Ruthland County Council’s contention in parliament by claiming that such assertion will not stand. Lord McNally articulated that the Localism Act will not reject the Derbyshire principle which is established on the ground of public policy. Quoting Lord McNally in verbatim:
‘The Government are in no doubt that if a case were brought, the courts would still find that local authorities cannot bring action in defamation. The decision in Derbyshire was reached on public policy grounds, which we considered remain compelling. The House of Lords found that it would be contrary to the public interest for organs of government to be able to sue in defamation, and that it would be an undesirable fetter on freedom of speech. It must be borne in mind that Derbyshire was decided before the enactment of the Human Rights Act 1998. Consideration of Article 10 would only bolster the reasoning of the House of Lords in Derbyshire.’
The parliamentary response by Lord McNally in the UK illuminates the preliminary position of the Localism Act which is, in substance, similar to the GPA. To remove the legal effect of the Derbyshire principle from our jurisprudence will require a provision that specifically grants governments the cause of action to sue on the ground of defamation, although the constitutionality of such provision will have to be further scrutinised.
Another justification offered in Chong Chieng Jen was that the Derbyshire principle is an English common law doctrine which is rendered obsolete when the GPA, as a domestic legislation, addresses the same subject matter. It is the authors’ opinion that this reasoning lacks accuracy. The authors had previously argued that the conclusiveness of the GPA as the answer to the applicability of the Derbyshire principle was in the negative. More importantly, the Derbyshire principle had long escaped the embrace of English common law as it has been accepted, developed, and seeded into the veins of Malaysian jurisprudence.
Multiple precedents such as Dr Syed Azman Syed Ahmad Nawawi and Utusan Melayu (Malaysia) Berhad have accepted the Derbyshire principle and this principle was based on Article 10 of the Federal Constitution which provides for freedom of expression. In Utusan Melayu (Malaysia) Berhad, the court went as far as to acknowledge that the prohibition on governmental authority to sue stems from Article 10 of our very own Constitution:
‘It is of some significance to emphasise that, the legitimate issue herein is not so much on the applicability or otherwise of the common law principle as laid down by the House of Lords in Derbyshire County Council but rather the right to discuss or criticise the Government and public officials by the citizens in the exercise of their right under art. 10 cl. (1)(a) of the Federal Constitution. It matters not, whether the common law principle is applicable for, in our judgment, such right is in fact and in law an integral part of the right to freedom of speech and expression, the basic right of every citizen which is deeply and firmly ingrained in art. 10 cl. (1)(a) of the Federal Constitution that can only be restricted by Federal law in accordance with cl. (2)(a) thereof.
Thus, even assuming for a moment that the Derbyshire principle is not part of our law on defamation, or the appellant's case does not principally rely on the common law principle, we would say that the principle clearly emanates from and is already well-entrenched in art. 10 cl. (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.’ 
Suffice to say that the Derbyshire principle has since been elevated to be part of our law on defamation. Respectfully, the observation in Chong Chieng Jen, which rejected the Derbyshire principle because of its English common law nature, is inaccurate.
An additional reason propounded in Chong Chieng Jen is that Article 10(2a) of the Federal Constitution provides that the Parliament may by law impose such restrictions on freedom of speech to provide against defamation. The court thus relied on Article 10(2a) to justify the overruling of the Derbyshire principle.
However, this interpretation took the phrase ‘against defamation’ in its pedantic sense without delving deep into the proportionality and rationality of the restriction. This is inconsistent with the established manner of its constitutional interpretation. The Constitution is not to be interpreted in any pedantic and narrow sense, as the provisions in the Constitution are necessarily general to offer greater flexibility for different needs at different times. In simpler terms, just because Article 10(2a) provides room for imposition of laws that restrict freedom of speech against defamation, it does not grant legislators the absolute power to suppress freedom of speech on the ground of defamation at their whims and fancies.
The gate to allow any derogation of fundamental liberties must be lifted vigilantly. The established rule to interpret a constitutional provision which may dilute our basic human rights, such as our freedom of speech, is restrictive interpretation. In Sivarasa Rasiah v Badan Peguam Malaysia, the Federal Court has enunciated that the interpretation on the derogation of guaranteed rights must be restrictive and the requirement of ‘reasonableness’ must be read into the proviso that allows for infringement of guaranteed rights. Such restrictive interpretation is achieved by examining the proportionality of the derogation of fundamental liberties as has been laid down by our apex court in the case of Public Prosecutor v Azmi bin Sharom.
The Federal Court in Public Prosecutor v Azmi bin Sharom subsequently adopted the proportionality test which unfolds to three parts:
(i) the legislative objective is sufficiently important to justify limiting a fundamental right;
(ii) the measures designed to meet the legislative objective are rationally connected to it; and
(iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.
Without any ambiguities, the Federal Court concluded that any laws promulgated under Article 10(2) must pass the proportionality test to be valid.’
Turning the prism to examine the reasoning in Chong Chieng Jen, the discussion on whether the court’s interpretation on the GPA satisfies the proportionality test is conveniently left out. Chong Chieng Jen relied on the literal meaning of Article 10(2a) to rationalise the constitutionality of its decision. Such decision seemed to have stemmed from a hasty leap over the careful deliberation mandated by the apex court’s precedent.
Even if the scope of the GPA can be rightfully extended to overrule the Derbyshire principle, it will attract issues of the GPA’s constitutionality as it effectively contravenes Article 10(1a) of the Federal Constitution. It is submitted that the court in Chong Chieng Jen then bears the burden to scrutinise the constitutionality of the GPA with the proportionality test. Regrettably, the Federal Court in Chong Chieng Jen spent no efforts on this crucial step that would have best manifested the judiciary’s respect for fundamental liberties and the rule of law.
It must always be borne in mind that the case of Chong Chieng Jen allowed a general, pre-independence legislation to deny our entrenched constitutional rights without examining the proportionality of the legislation. In lieu of such inadequacy, the authors are of the opinion that the reasonings of Chong Chieng Jen are flawed upon closer scrutiny.
The freedom of speech to criticise the authorities and the freedom of press are both very fragile rights emanating from Article 10(1) of our Federal Constitution. They have been and will always be susceptible to the intrusion from powerful figures who hold great resources to commence legal action against dissenters. The Pakatan Harapan Government’s expressed commitment to study the feasibility of the GPA’s amendment sheds reassuring light on the prospective development on this matter. We urge the Government to take a steadfast stance in amending the GPA or the Defamation Act to restore our previous position before Chong Chieng Jen. Concomitantly, we hope that the judiciary can, in the spirit of constitutionalism, scrutinise the constitutionality of the GPA when a similar issue is challenged again before the highest court of the land.
Written by Tan Jia Shen, Anson Liow and Lim Chin Hou, third year students of the Faculty of Law, University of Malaya.
Edited by Danial Imran.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
  3 MLJ 300
 Derbyshire County Council v Times Newspaper  AC 534
 Petroliam Nasional Bhd & Ors v. Khoo Nee Kiong  4 MLJ 216
 Perbadanan Johor & Ors v. Syed Hussein Alattas & Ors  6 CLJ 459
 Lembaga Tanah Persekutuan and Anor v Dr Tan Kee Kwong  4 MLJ 622
 Lembaga Kemajuan Tanah Persekutuan & Anor v Dr Tan Kee Kwong Civil Appeal No W-01 (NCVC)-551-10 of 2011
 Tony Pua Kiam Wee v Syarikat Bekalan Air Selangor Sdn Bhd  MLJU 1603.
 Kerajaan Negeri Terengganu & Ors v Dr Syed Azman Syed Ahmad Nawawi & Ors (No 1)  7 MLJ 52.
 Kerajaan Negeri Terengganu & Ors v Dr Syed Azman Syed Ahmad Nawawi & Ors (No 2)  7 MLJ 145
 Act 268
 Refer to footnote 8 at para 28
 Utusan Melayu (Malaysia) Berhad v Dato’ Sri Diraja Haji Adnan bin Haji Yaakob  5 MLJ 56
 Refer to footnote 12 at para 19
 Refer to footnote 12 at para 36
 Act 359
 See footnote 8 above, para 14
  MLJU 201
 Government of the State of Sarawak & Anor v Chong Chieng Jen  3 MLJ 41 at para 109
 Michael Cross, Council defers defamation move, The Law Society Gazette, 25 Dec. 2012, 21 Dec. 2018 <https://www.lawgazette.co.uk/news/council-defers-defamation-move/68961.article>
 S1, Localism Act 2011
 Grand Committee, defamation bill (2013) <https://publications.parliament.uk/pa/ld201213/ldhansrd/text/130117-gc0001.htm>
 See footnote 1 above, Para 45
 See footnote 8 above
 See footnote 12 above
 See footnote 12, Para 20
 See footnote 1 above, Para 46
 British Coal Corporation v The King  AC 500, 518
 Sivarasa Rasiah v Badan Peguam Malaysia  3 CLJ 507
 Public Prosecutor v Azmi bin Sharom  6 MLJ 751
 Martin Carvalho, Hanipa: Pakatan to form committee to study case allowing govt to sue individuals, The Star Online, 28 Sep. 2018, 21 Dec. 2018 <//www.thestar.com.my/news/nation/2018/09/28/hanipa-govt-to-review-landmark-judgment-allowing-individuals-to-be-sued-for-defamation/>