Deputy Minister in the Prime Minister's Department Mohd Hanipa Maidin said no government should be given the right to sue its people for defamation.
With due respect, the landmark decision by the Federal Court yesterday has left much to be desired, he told Malaysiakini.
"As far as I am concerned, the decision by the English court in the Derbyshire case is very, very sound and should deserve our utmost respect.
"The Derbyshire judgment reflects the true nature of law on defamation vis-a-vis the sacred right of the people to say something - even seemingly defamatory - on their elected government. The government must not be given any right to sue for defamation. Period," he emphasised.
Yesterday, a five-member bench led by the Court of Appeal president Justice Ahmad Ma'arop decided
that the federal and state governments can sue an individual for defamation.
It ruled in Bandar Kuching MP Chong Chieng Jen's appeal in his case against the Sarawak government that the common law Derbyshire principle – which forbids public authorities from bringing actions for defamation – was not applicable as there are existing laws available, including the Government Proceedings Act 1956 (GPA).
The court also noted that the government has a reputation which it could protect via defamation suits, and that it has a statutory right to sue as provided for in GPA.
Justice Ahmad further explained that the Derbyshire principle does not apply because under Section 3 of the Interpretation Acts 1948 (1967), the words "written law" does not include common law.
Thus the statutory right of the government to sue in civil proceedings under Section 3 of the GPA including for defamation is not subject to the common law of England.
"GPA does not preclude the government from taking civil action for defamation," the judge added.
Hanipa said the apex court has completely failed to draw the line of demarcation between an ordinary civil suit and a libel suit.
"This has made the judgment, with the greatest respect, hard to swallow in any democratic nation. It reduces the right to freedom of speech being useless and meaningless."
He added that the court seemed to interpret the law literally, which may be seen as a mockery of the legal principles of defamation law.
When asked on concerns whether the Pakatan Harapan government would use the judgment to initiate defamation suits against individuals, Hanipa said he does not think so as "this government is different".
Former Federal Court judge Gopal Sri Ram also disagreed with yesterday's decision and pointed out that under the law, the government has no reputation to protect.
"Therefore, by allowing the government to sue for defamation, it infringes the personal liberty of individuals," he said.
Chong, who is also deputy domestic trade and consumer affairs minister, said he faced problems in Sarawak when he questioned the state government for channelling a large number of funds to questionable agencies, after failing to get details from the state legislative assembly.
His lawyer Ranjit Singh said it is a mockery that the state can use taxpayers' money to fight its case against the Stampin MP, while Chong had to get his own lawyers.