Thursday, September 27, 2018

Federal Court further restricts freedom of expression in "New Malaysia"

The greatest obscenity of all must surely be a government figure (whether minister, government institution or public servant) using public-taxpayers' money to sue a member of the public for criticising actions of the government.

It's not unlike the scion of a wealthy man suing his sire, the fount of his (scion's) wealth, or that of a poor mum being shouted at by his teenage child.

And that's what has happened when the Apex Court rules Federal Court rules gov't can sue for defamation.

The Federal Court in its ruling says: The government has a reputation, the court said, which it could protect via defamation suits.

Judge Ahmad Maarop as chair of the 5-person bench, delivered the unanimous ruling of the Federal Court, said: ... in Malaysia the right of federal and state governments to sue was provided for under Section 3 of the Government Proceedings Act 1956.

He said the common law principle based on a case in Britain in the 1990s was not suitable in Malaysia, as the right to freedom of speech under the Federal Constitution also imposed restrictions.
He said Parliament imposed restrictions for defamation and the incitement to any offence

But Sri Gopal Ram Sri Ram said ... the Government Proceedings Act was a pre-Merdeka statute.

“Therefore it cannot be treated as imposing a restriction on the right of free speech under Article (10) (2) of the Federal Constitution,” he said.

Being a pre-Merdeka law, it must be brought into accord with Article 162 (6) of the constitution, the supreme law of the country, he said.

“When we do that, the right of the government to sue must be subject to Article (10) (1) (a) which will include the right to criticise the government without restriction,” he said.

Sri Ram said under Article 5 (1), the personal liberty of a person could not be taken away save in accordance with law.

“The law included common law of England. Under that law, a government has no reputation to protect,” he added.

Sri Ram further said the right to sue must be accompanied by a cause of action.

However, he said the Government Proceedings Act only stated governments could sue as an ordinary person but the law must vest a cause of action.

He said the common law prevented the government to bring an action for defamation.

In the Derbyshire County Council v Times Newspapers Ltd and Others (1993) case, the British Appeals Court ruled:

... it was of the highest public importance that a democratically elected governmental body should be open to uninhibited public criticism, and since the threat of civil actions for defamation would place an undesirable fetter on the freedom to express such criticism, it would be contrary to the public interest for institutions of central or local government to have any right at common law to maintain an action for damages for defamation; and that, accordingly, the plaintiff was not entitled to bring an action for libel against the defendants, and its statement of claim would be struck out.

government with taxpayers' money can sue you to financial ruins 

What our Federal Court has sadly done is to FURTHER restrict freedom of expression in the so-called "New Malaysia".

Even more sadly, not one single minister of the new Mahathir government has raised any comments on the draconian ruling. Pariahs.

not even vaccinated for anti-rabies 

1 comment:

  1. To be very clear, this case predated the Pakatan Harapan government, and the Federal Court is independent.