RECEPTION OF DERBYSHIRE PRINCIPLE RELATING TO SUIT FOR DEFAMATION BY CENTRAL OR LOCAL GOVERNMENT BODIES: THE AMBIVALENCE OF MALAYSIAN JUDICIARY
Abstract
The defamation rule applies to all plaintiffs regardless of their
nature, including cooperation. However,
an important dent to this rule was made in the seminal case of Derbyshire County
Council v Times Newspapers Ltd
and others
[1993] AC 534, by the United Kingdom House of Lords
that on the grounds of public interest in the freedom of expression, the courts
will not allow free speech to be fettered, by permitting government bodies,
whether local or central, to sue for libel. Essentially, the Derbyshire principle lays down that
under the common law, government bodies, whether central or local, do not have
the right to maintain an action for damages for defamation as it would be
contrary to the public interest for the organs of government (whether central
or local) to have that right because it is of the highest importance that a
government body should be open to uninhibited public criticism, and the right
to sue for defamation would not only have a chilling effect but would also
place an undesirable fetter on the freedom of speech. In the context of
Malaysia, the Malaysian judiciary have so far displayed an ambivalent response
to the reception of the common law principle laid down in Derbyshire Country Council. Some of the courts of first instance
have accepted the principle while others have refused to receive the rule. The
Malaysian Court of Appeal – through at least two cases - have displayed equal
ambivalence to the reception of this common law rule. While one Court of Appeal
judgment appears to have openly embraced the rule, the Court of Appeal in a
recent judgment by a majority have refused to adopt the principle on the cogent
ground that Malaysia has two statutory provisions which expressly allow a local
or central governing body to sue for defamation, which the common law embodied
in Derbyshire cannot abrogate. In
light of the foregoing, this paper argues that the Federal Court, the apex
court in Malaysia, should decide this critical issue and not let uncertainty in
the law prevail. The paper seeks to persuade that while the common law can be
abrogated by statute either expressly or by necessary implication, the common
law cannot abrogate statutory provisions. Further, while freedom of expression
is an important safeguard, it may be more rigorously applied in mature and well
developed societies. The primacy of freedom of expression in preventing
governmental authorities from suing for defamation may not be a suitable or
valid justification in the context of local political situation in Malaysia,
where too much freedom of the press with ethical codes not similar to those in
the developed democracies, may endanger the reputation of governmental bodies,
if freedom of expression were allowed free reign.
References
- Barendt, E. (1993). Libel and Freedom of Speech in English Law. Public Law 449.
- Descheemaeker, E. (2009). Protecting Reputation: Defamation and Negligence. Oxford Journal of Legal Studies vol. 29.
- Trindade, F.A. (2000). Defamatory Statements and Political Discussion. Law Quarterly Review vol.116.
- William, K. (2003). Defaming Politicians: The Not So Common Law. Modern Law Review vol. 63.
Abstract
References
- Barendt, E. (1993). Libel and Freedom of Speech in English Law. Public Law 449.
- Descheemaeker, E. (2009). Protecting Reputation: Defamation and Negligence. Oxford Journal of Legal Studies vol. 29.
- Trindade, F.A. (2000). Defamatory Statements and Political Discussion. Law Quarterly Review vol.116.
- William, K. (2003). Defaming Politicians: The Not So Common Law. Modern Law Review vol. 63.
Details
| Journal Section | Articles |
|---|---|
| Authors | |
| Publication Date | December 18, 2016 |
| Submission Date | December 26, 2016 |
| Published in Issue | Year 2016 |
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