Public officials too have reputations deserving of protection — Hafiz Hassan

DEC 25 — In the case of Lim Guan Eng v Ruslan bin Kassim and another appeal [2021], the facts showed that the plaintiff, who was then the Chief Minister of Penang, made a two-day official visit to Singapore in August 2011 for the stated purpose of attracting investments and medical tourism to Penang. In the course of the visit, he attended a dinner with some Singaporean politicians.

In the case of Lim Guan Eng v Ruslan bin Kassim and another appeal [2021], the facts showed that the plaintiff, who was then the Chief Minister of Penang, made a two-day official visit to Singapore in August 2011 for the stated purpose of attracting investments and medical tourism to Penang. — Picture by Miera Zulyana

The first defendant, who was then the chief information officer of a political party, issued a press statement — which was published in several major newspapers — alleging that the plaintiff had attended a “secret meeting” with politicians from Singapore’s ruling party and that Malaysians were entitled to know what was discussed at the meeting.

The press statement, among others, questioned the plaintiff’s loyalty to Malaysia. The plaintiff sued the first defendant, the president of the political party (second defendant), the political party (third defendant), the editor and the newspapers concerned (fourth and fifth defendant) for defamation.

After a full trial, the High Court (HC) allowed the plaintiff’s claim for general and aggravated damages. The HC judge found that the impugned statements made/published by the defendants questioned the plaintiff’s loyalty as a Chief Minister and citizen of Malaysia and insinuated that he might have leaked national secrets to foreign parties.

The learned judge rejected all the defences of the three defendants and found that their actions were malicious. The three defendants appealed against the decision.

The Court of Appeal (COA) allowed the appeal and dismissed the plaintiff’s claim on the ground that he had no locus standi to sue for defamation in his official capacity as Chief Minister of Penang.

The plaintiff, however, was granted leave to appeal to the Federal Court against the COA’s decision on the question whether an earlier Federal Court’s decision in Chong Chieng Jen v Government of State of Sarawak & Anor [2019] allowed a government official to sue for defamation in their official capacity.

The Federal Court in that case had held that under section 3 of the Government Proceedings Act 1956 (GPA) the Sarawak State Government had the right to commence any form of civil proceedings, including defamation.

The Federal Court in the instant case deliberated at length and came to a decision by a majority (2:1). It allowed the appeal, set aside the COA’s decision and restored the HC’s decision.

The three apex judges, though, said that the law does allow a government official to sue for defamation in their official capacity. After a lengthy deliberation on the law as expounded in the cases in various jurisdictions, Federal Court judge Harmindar Singh, who delivered the decision of the majority, said:

“The cases demonstrate quite plainly that individual reputations, whether in their official or personal capacity, are all deserving of protection. Where the impugned defamatory publications actually identify individuals in government in their attacks rather than being blanket critiques of government policy or action per se, then those individuals so identified have every right to commence actions in their personal capacities, if their reputations have been affected as a result.

“So, no distinction is to be drawn between a public officer being defamed for conduct in his official capacity and his personal capacity. As long as the defamatory statement is capable of being read as referring to the individual and not the government body as a whole, the individual officer is entitled to sue.”

Why are reputations deserving of protection? Shakespeare depicted the importance of reputation in Richard II (Act I Scene i) as follow:

Mine honour is my life, both grow in one,

Take honour from me and my life is done.

Lord Nicholls in the English case of Reynolds v Times Newspapers Ltd and others [2001] said:

“Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for.

“Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual is the loser.

“For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of his reputation is conducive to the public good.

“It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad.”

Having considered the importance of protecting reputation, Harmindar Singh FCJ said:

“A convincing case needs to be constructed with formidable arguments and justification before any individual reputation can be precluded from protection, either by policy or by law. My impression, however, is that arguments against any such preclusion are more compelling.

“Foremost of the reasons is that a public official is capable of being defamed in the same way as any other ordinary citizen as both share the right to dignity and reputation.”

The learned apex court judge continued:

“It is discriminatory that the reputation of public officials in matters affecting their official functions is singled out for adverse treatment. There are far more influential persons in the community who affect public life.

“As all persons are guaranteed equal rights under the Federal Constitution, there is insufficient basis and justification for the inequitable treatment. Being singled out as such may also seriously deter capable and deserving persons from seeking public office.

“The reason is obvious. Without the protection, public officials will be powerless to defend against attacks by the media and others who will no doubt be in a powerful position as the necessary checks, which the law of defamation normally provides, will be limited.”

Accordingly, 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.

In short, public officials too have reputations deserving of protection.

*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.