Appellate court explains why public officials can be criticised

The highly-anticipated written judgment by the Court of Appeal in the case of Penang Chief Minister Lim Guan Eng versus the New Straits Times Press (M) Bhd, Utusan Melayu (M) Bhd and Perkasa information chief Ruslan Kassim and president Ibrahim Ali is finally out 14 months after the decision was delivered.

With the judgment, Lim's appeal can now finally be heard by the Federal Court and a determination made on whether the Derbyshire principle can be applied in defamation suits filed by politicians against the media.

The Derbyshire principle involves the 1994 UK case of the Derbyshire County vs Times Newspapers Ltd where the court ruled that local authorities could institute legal action against criticism towards them.

In the decision on Lim's case, Justice Rohana Yusof outlined the applicability of the Derbyshire precedent to this case and said the subject of the defamation action should be appraised from the perspective of the right of citizens to discuss or criticise the government.

"Such a right (to criticise political leaders) is in fact and in law an integral part of the right to freedom of speech and expression, being the basic right guaranteed to every citizen of this country and in any free democratic process.

"This fundamental right must be given due recognition as one which is duly protected and guarded by the Federal Constitution.

"Thus, even assuming for a moment the Derbyshire principle is not part of our law on defamation, or that the defendants' case herein does not principally rely on common law principle, we would say that the principle in fact and in law clearly emanates from and is already entrenched in Article 10 Clause (1) (a) of our constitution, which guarantees the right to freedom of speech and expression," she said.

Such a right, Justice Rohana said, encompasses the right of the people to discuss the government and those holding public office in 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. Every responsible citizen should not be in any way fettered in his statements where it concerns the affairs and public administration of the government.

"Any action to the contrary would in our view, militate against public interest and directly affect the fundamental right as guaranteed unless otherwise provided by a federal law," she said.

She said this in the unanimous decision on Dec 21, 2016, which allowed the appeal by NSTP, Utusan, Perkasa, Ruslan and Ibrahim to set aside the total of RM550,000 damages that was awarded to Lim (above) by the High Court.

Besides Justice Rohana, the other two judges on the bench were

Quantum reduced

All three judges had earlier also ruled to strike out the suit by Pahang menteri besar Adnan Yaakob (below)  against Utusanon the grounds that public officials, including politicians who hold public office, can be criticised by the media as such a practice was essential in a democracy.

Justice Rohana, in Lim's case written grounds dated Feb 28 this year, said from the pleadings in Lim's case it was clear that the suit was made in Lim's capacity as CM, Ayer Puteh assemblyperson and Bagan MP.

"Likewise, throughout the (High Court) judgement, the learned judge was determining and making her finding of defamation, as well as awarding damages solely on the fact that the plaintiff was the Penang CM," she said.

"The submission on damages is premised on the exact position as Lim being the CM. There is nothing to suggest that the claim of the plaintiff is anything but in his official capacity less the allegation of defamation may not even be sustainable," he said.

While Justice Rohana and the other two members of the bench - Justice Idrus Harun and Justice Mary Lim - agreed that the words in the articles following a press statement issued by Perkasa's Ruslan on Lim's visit to Singapore to meet with PAP leaders were defamatory to Lim, they agreed the RM550,000 damages were excessive and said each should only pay RM50,000.

They said as they had made the same decision in Adnan's case, they were bound to hold that decision against Lim too.

Justice Rohana said although the Federal Court had overturned the same panel's decision in Adnan's appeal, there were as yet no written grounds to that case.

"The appeal by the Pahang MB, in that case, was allowed. In the result, the order for striking out made by us was set aside by the Federal Court. We have not had the benefit of the decision or grounds of judgment as of the applicability or otherwise of the principle in the Derbyshire case.

"We have therefore followed our earlier decision that the principles of law in Utusan Melayu vs Adnan applies to the facts and circumstances of this (Lim's) present appeal.

“On this ground alone, we allowed all four appeals before us and set aside the High Court decision," she said in dismissing Lim's suit.

Other pending suits

Besides Lim, other politicians and news portal including Malaysiakini have been awaiting the outcome of Lim's appeal following suits filed by Prime Minister Najib Abdul Razak against them.

They include Harakah, former MCA president Dr Ling Liong Sik, Petaling Jaya Utara MP Tony Pua and Pandan MP Rafizi Ramli.

Lawyers for the above-mentioned defendants have indicated they would use the Derbyshire principle in the Court of Appeal case to strike out Najib's suit against their clients.

With the written grounds now made available by Justice Rohana, the Federal Court has now fixed April 16 for further case management of Lim's appeal. -Mkini

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