LIM GUAN ENG v. RUSLAN KASSIM & ANOTHER APPEAL

[2021] 3 MLRA 207

LIM GUAN ENG v. RUSLAN KASSIM & ANOTHER APPEAL
Federal Court, Putrajaya
Nallini Pathmanathan, Abdul Rahman Sebli, Harmindar Singh Dhaliwal FCJJ
[Civil Appeal Nos: 02(f)-61-07-2019(W) & 02(f)-62-07-2019(W)]
26 February 2021

JUDGMENT

Harmindar Singh Dhaliwal FCJ (Majority):

Introduction

[1] There are two appeals before us. The core issue in the appeals is whether an individual who holds political office or is a government official is disentitled from bringing an action in defamation in his official capacity. The appeals arose pursuant to the granting of leave on the following question:

"Does the decision of the Federal Court in Chong Chieng Jen v. Government Of State Of Sarawak & Anor [2019] 1 MLRA 515; [2019] 3 MLJ 300; [2019] 1 CLJ 329; [2018] 8 AMR 317 allow a Government Official to sue for defamation in his or her official capacity bearing in mind the decision in Derbyshire County Council v. Times Newspaper Ltd & Ors [1993] 1 All ER 1011, not being applicable under Malaysian law?"

[2] Underpinning the core issue in the appeals, as is usually the case, is the obvious tension between the competing interests of freedom of expression and the protection of a person's reputation. We may all have heard of the saying: "sticks and stones may break my bones but words can never hurt me". But that seems a little antiquated today and will not find endorsement in the law of defamation. And rightly so. Words or speech can have extremes of being useful when they are uplifting or enlightening or harmful when they are dangerous and devastating. The worst case is undoubtedly speech calculated to incite racial or religious hatred. That can hurt a whole country.

[3] The essence of speech was noted by celebrated author Rodney Smolla in his book, Free Speech in an Open Society [1992] Chap 1:

"Speech may be uplifting, enlightening, and profound; but it is often degrading, redundant, and trivial. Speech may be abstract and theoretical, a near cousin to thought, but it is often concrete and immediate, filled with calls to action, intertwined with conduct. Speech may be rational, contemplative, orderly, organised, and soft; but it is often emotional, raucous, chaotic, untidy, and loud. Speech may be soothing and comfortable; but it is often vexatious and noisome. Speech may confirm and affirm; it may be patriotic and supportive of prevailing values and order; but it may also be challenging, threatening, and seditious, perhaps even treasonous."

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