Federal Court decision creates chilling effect on public discourse

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The Malaysian Bar refers to the recent decision of the Federal Court in the case of Chong Chieng Jen v Government of State of Sarawak & Anor, where the apex court held that a public authority has the right to bring a civil suit against an individual for defamation.

The Malaysian Bar has grave reservations about this ruling, which creates a chilling effect on public discourse by effectively enabling the government to repress views, curtail expression and news reporting, and restrict democratic space, through the threat of defamation suits.

The role, responsibilities and vast powers held by the government — which is helmed by individuals who are elected into office by the rakyat — requires continuous scrutiny and constant vigilance by the rakyat themselves.

It is inevitable that the performance of the government, whether in terms of making decisions, formulating policies or implementing programmes will invite public comment and criticism. No government that seeks to be open, transparent and accountable in all its actions would wish to have an unquestioning, uncritical, non-discerning or self-censoring population.

As a public body, the government cannot, and must not, be permitted an opportunity to threaten or take legal action on the basis that it has been defamed by remarks made by anyone. In this respect, the government cannot take offence in the same manner that a private individual may.

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Any inaccurate or incorrect statements made by members of the public or the media can be amply and adequately addressed, replied to or rebutted by the government via media platforms — both state-owned and private — without having to resort to defamation suits.

It is regrettable that the principle laid down in Derbyshire County Council v Times Newspaper Ltd [1993] AC 534 — namely, that it is of the highest public importance that a democratically elected governmental body be open to uninhibited public criticism and that any threat of civil action for defamation would place an undesirable fetter on the freedom to express such criticism — was not followed.

In our ‘new Malaysia’, the rakyat must be allowed to hold their government to the highest possible standards. Even the previous Barisan Nasional government acknowledged this when it amended the Sedition Act 1948 to remove criticism of government as being seditious. Sadly, the former government lacked the political courage to bring the amendments into force.

The recent decision of the Federal Court is regressive and disappointing. There can be no democracy in a nation where individuals cannot express their opinions of the government without fear of legal action.

We call upon the Pakatan Harapan government to immediately introduce legislation in this parliamentary session to undo the effects of the Federal Court decision and to ensure once and for all that no government in this country will be able to resort to such legal action in order to quell comment or quash criticism.

George Varughese is president of the Malaysian Bar.

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