Public officials can sue for defamation in their personal capacity even if the statements concern their official conduct, contrary to previous rulings that limited such actions.

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, 2020 MarsdenLR 2128 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 persons 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."

[4] Its effects notwithstanding, free speech is essential to the proper functioning of a democracy because it facilitates informed decision-making and democratic participation by citizens (see E Barendt, Freedom of Speech [1985] Oxford University Press). The framers of our Federal Constitution thought so too and hence we have Art 10. So, we already have a constitutional dimension to the common law freedom of speech principles unlike many countries.

[5] The value of reputation is also not in doubt. Shakespeare observed that a "purse" is mere "trash" when compared to the value of a "good name" (W Shakespeare, Othello, act III scene iii). It is quite a paradox then that the function of the law of defamation is the protection of both free speech and ones good name. As this case will amply demonstrate, finding the right balance, or a judicious balance as some prefer to call it, in the protection of both seemingly opposing interests, becomes key and is a duty the courts have readily acknowledged and accepted although getting the balance right is somewhat contentious.

[6] At the outset of the hearing of the appeals, counsel for the appellant applied to withdraw the appeal against the respondent, Ruslan Kassim as he had passed away since the appeals were filed. Accordingly, Appeal No 02(f)-61-07-2019(W) was struck out with a further order, as requested by both parties, that there be no judgments enforced by or against the estate of the deceased, Ruslan Kassim. So, only one appeal remained for consideration.

[7] The relevant background facts leading to the filing of the present appeals, as revealed in the judgments of the courts below and the parties submissions, can be stated as follows. For convenience, the parties will be referred to as they were in the Court of first instance or by their names as