KUALA LUMPUR, Feb 26 — The Federal Court in a majority decision today said Perkasa and its then president Datuk Ibrahim Ali have to pay RM150,000 in damages to former Penang chief minister Lim Guan Eng over the group’s defamatory statements published in October 2011, as ordered by a previous court.

The Federal Court’s three-judge panel chaired by Federal Court judge Datuk Nallini Pathmanathan had last September heard Lim’s appeal against the Malay rights group and Ibrahim, with two judges today deciding in the DAP secretary-general’s favour.

In reading out the summary of the majority judgment that was also agreed by Justice Nallini, Federal Court judge Datuk Harmindar Singh Dhaliwal said the High Court was more than justified in awarding compensation of RM150,000 to be paid by Perkasa and its officials which he noted was  not excessive.

"In conclusion and for the reasons mentioned, a public officer when suing as an individual,whether suing in personal or official capacity is not prohibited from bringing a defamation action,” the judge said when reading out the summary in an online proceeding via Zoom.

"Accordingly, the appeal is allowed with costs to the appellant. The orders made by the Court of Appeal are set aside. The orders of the High Court in relation to the respondents here are hereby restored,” he said, when restoring the RM150,000 amount that the High Court had ordered Perkasa and Ibrahim Ali to pay.

Federal Court judge Datuk Abdul Rahman Sebli also read his minority judgment, where he said Lim’s appeal should be dismissed.

The Federal Court also awarded Lim RM50,000 in costs, to be paid by Ibrahim and Perkasa.

On May 11, 2012, Lim filed a defamation lawsuit against seven defendants. He named them as then Perkasa information chief Ruslan Kassim, Ibrahim, Perkasa (its full name) Pertubuhan Pribumi Perkasa Malaysia, the New Straits Times Press (Malaysia) Sdn Bhd and Datuk Syed Nadri Syed Harun who was group editor for two of NSTP’s publications, Utusan Melayu (Malaysia) Berhad and its then group editor-in-chief Datuk Abdul Aziz Ishak.

According to Lim’s statement of claim, the defamatory statement by Ruslan dated October 1, 2011 was published on Perkasa’s website, with contents in the same statement subsequently published on October 2, 2011 by NSTP’s New Sunday Times and Berita Minggu as well as Utusan Melayu’s Mingguan Malaysia.

The defamatory statement came after Lim’s official visit as then Penang chief minister in leading a delegation by InvestPenang to Singapore on August 11 and August 12, 2011 to promote investment in the Malaysian state.

Apologies were later published by the three newspapers towards two local corporate figures which Ruslan had named in his statement on Lim. But in his court filing, Lim said that Ruslan and the three publications had failed to apologise to him prior to the lawsuit despite written demands to them.

Among other things, Lim claimed in his lawsuit that the defamatory statements had tarnished his reputation as an honourable politician and chief minister of Penang, and had falsely accused him of treason by revealing national secrets to the Singapore government.

He also claimed that the statements published were with malice without regard to the truth and that he had not been contacted before publication nor the information verified beforehand.

Lim sought RM150 million in general, exemplary, aggravated and special damages, apologies to be printed by the newspapers on their front page and an undertaking by the newspapers’ publishers to refrain from publishing such defamatory statements.

On March 26, 2015, High Court judge Datuk Nor Bee Ariffin ruled in favour of Lim, finding that the statements by Perkasa’s Ruslan and published by the three newspapers were defamatory in nature against him.

The judge had also ruled that the seven defendants had failed in their defences and ruled that they were liable to compensate Lim for the defamation.

She ordered a total of RM550,000 to be paid in general and aggravated damages, with Ruslan, Ibrahim and Perkasa to pay RM150,000, and RM200,000 to be paid by NSTP and its then editor and RM200,000 to be paid by Utusan Melayu and its then editor-in-chief.

All seven defendants later appealed to the Court of Appeal, which agreed on December 21, 2016 to hear their case.

A three-judge Bench in the Court of Appeal comprising Tan Sri Rohana Yusuf, Tan Sri Idrus Harun, Datuk Mary Lim Thiam Suan agreed with the High Court that the statements had defamed Lim, agreeing that Perkasa and its two officials had failed in their bid to use the defence of justification and fair comment, and agreed that the rest had also failed in their defence.

However, the Court of Appeal said that aggravated damages are usually awarded only for cases involving "high-handedness or oppressive action” and that it should not be awarded in this case as there was no evidence of the defendants acting in a high-handed or insulting manner against Lim.

It also said only general damages of RM50,000 should be paid jointly by Ruslan, Ibrahim, Perkasa, RM50,000 to be paid jointly by NSTP and its then editor, RM50,000 to be paid jointly by Utusan Melayu and its then editor-in-chief.

The Court of Appeal accepted the appeals against the High Court decision and dismissed Lim’s defamation lawsuit, noting it was filed when he was Penang chief minister.

Lim then appealed to the Federal Court, but did not proceed with his appeals against NSTP and Utusan Melayu and its editors as both publishers had agreed in March 2019 to pay RM200,000 each to Lim as previously ordered by the High Court.

The Federal Court on July 11, 2019 granted Lim leave to appeal against Ruslan, Ibrahim and Perkasa and on September 22, 2020 heard his appeal.

But by the time the appeal was heard, Lim had withdrawn his appeal against Ruslan who had since died. All the parties in the suit agreed that there would be no judgments enforced against the late Ruslan’s estate.

A general view of the Federal Court in Putrajaya December 14, 2020. — Picture by Yusof Mat Isa

Today’s 2-1 ruling

Reading out the majority ruling, Harmindar said the key issue in Lim’s appeal at the Federal Court was whether an individual who holds political office or is a government official is disentitled from filing a defamation lawsuit in his official capacity.

Harmindar said contrary to the Court of Appeal’s opinion, the factual evidence based on the court documents showed that the defamatory words personally targeted Lim, and that the politician filed the suit in his personal capacity.

"It was the plaintiff suing as a private citizen and not by the office of the chief minister or the government of the state of Penang,” the judge said.

He pointed out the defamatory statements named Lim and specifically accused the latter of being disloyal to the country both as a chief minister and as a citizen.

"The sting of the statements was more of a criticism of the plaintiff rather than his office or the Penang state government,” the judge said, adding that Lim is not disentitled from filing the defamation lawsuit as an individual to protect his reputation.

As for the larger question of whether a government official can sue for defamation if the defamatory statements are on his official functions instead of on his private life, Harmindar said this would depend on the contents of the claim, rather than how the defamation lawsuit was filed.

Harmindar cited several court decisions in Australia, Canada, the US, the UK, Singapore, South Africa and said it would not be appropriate in a modern constitutional democracy to allow an elected government authority to sue its voting citizens for defamation as they are the ones who decided on them being put in power, or for government lawsuits against its citizens to be funded by the citizens who contribute to government coffers.

He said individuals in government can file defamation suits in their personal capacities, if they were identified in defamatory statements and if their reputations had been affected.

"So, no distinction is drawn between a public officer being defamed for conduct in his official capacity and his personal capacity,” he said, noting that such a public officer is entitled to sue as long as the defamatory statement can be read as referring to the individual and not the government body as a whole.

Harmindar said court decisions in other countries which he had listed had shown that protection should be given to individual reputations. He pointed out that a public official is capable of being defamed in the same way as an ordinary citizen as both have the common right to protect their reputation.

The judge said it would be discriminatory to give different treatment to the reputation of public officials over their official functions, and that it may deter capable individuals from seeking public office as they would not have protection under the law of defamation.

He said it may also be challenging to determine if a public official had filed a defamation suit in relation to personal or official matters as there could be overlaps.

"At the present time, our society is more inclined towards deference to persons in authority, with public image and perceived respectability enjoying a premium over freedom of speech. The scales may however be tilted differently over time,” Harmindar said.

"For all these reasons, it is my judgment that a public official must enjoy the same rights as other citizens and be allowed to sue for damages for defamation in any individual capacity whether in relation to personal or official matters,” he said.

He concluded that the Court of Appeal was wrong when it decided in Lim’s case that public officials are excluded in the public interest from suing for defamation in their official capacity or in matters relating to their official functions.

He noted that there is no accepted scale for the amount of compensation to be awarded in defamation cases.

He said it would depend on the merits of each case and factors such as the seriousness of the defamation, how it was published and how many people it reached, the conduct, credibility, position and standing of the person suing and how he had been affected, refusal of apology and conduct of the defendant since the time of the suit was filed.

Harmindar said the defamation was of the most serious kind in Lim’s case as the latter was alleged to have revealed national secrets to a foreign government, and that the High Court had found evidence that the defendants had no genuine belief that the allegations were true.

He pointed out that both the High Court and Court of Appeal found that the statements were defamatory and false.

Harmindar said he found the RM150,000 damages awarded by the High Court justified, and ordered Ibrahim and Perkasa to pay the amount.

Today’s minority ruling

The sole judge who dissented, Abdul Rahman insisted Lim had sued in his official capacity as Penang chief minister, based on the latter’s statement of claim and other court documents which made references to the government position.

The judge also said the defamatory allegations against Lim, that he had disclosed government secrets during an official visit as Penang chief minister, made the official element more predominant.

Among other things, Abdul Rahman said Lim’s appeal should be decided strictly on the basis of his suit in his capacity as Penang chief minister instead of his personal capacity as a private citizen.

"Given the fact that the appellant was a serving chief minister at the material time, the suit does not turn into a private suit between private individuals just because the appellant says so, unless he had pleaded and had proceeded with the trial on the basis that he was suing in his personal capacity as a private citizen.

"By not making his position clear, the appellant cannot now be heard to say that he was suing in both official and personal capacities, whichever suits him,” Abdul Rahman said.

He explained that the Government Proceedings Act (GPA) 1956 requires a government officer who is sued or sues in his official capacity to only be represented by a government legal officer.

He said the exception was if the suit involved a personal matter, in which case, the government officer can then engage a private lawyer to represent him.

Citing the GPA, Abdul Rahman said that Lim as the Penang chief minister needed to obtain a fiat or authorisation from the Penang state legal adviser to enable him to engage a private lawyer.

He said this was not done, and as such Lim’s entire defamation suit is void.

Abdul Rahman asserted that the entire defamation suit and all court papers filed for Lim by his private lawyer would be "illegal” and should be disregarded by the courts.

"This court being the apex court cannot turn a blind eye on the breach of the law by the appellant. Nor can the breach be trivialised as a mere technicality not affecting the justice of the case on the ground that liability had been proved against the respondents.

"It is a serious transgression of the law that has the effect of nullifying the whole action filed by the appellant,” he said.

Abdul Rahman upheld the Court of Appeal’s decision and maintained that the Federal Court should dismiss Lim’s appeal, but said there should be no order for costs as the case is of public interest.

But since the two Federal Court judges agreed, Lim would get RM50,000 in costs.

Lim was represented in this case by lawyer Americk Sidhu, while Perkasa and Ibrahim were represented by lawyer Adnan Seman.