Application of English Common Law in Malaysia PDF

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Application of English Common Law in Malaysia: With Reference to Derbyshire County Council v Times Newspapers Ltd & Ors [2017] 1 MLJ lix INTRODUCTION The Federal Constitution defines ‘law’ as written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof.1 Since written law cannot address fully every aspect of the principles of law, common law thus provides guidance on areas that are not covered by written laws. ‘Common law’ refers to the law developed by judges through decision of the courts or also known as the judgemade law. Section 3 of the Interpretation Acts 1948 and 1967 defines ‘common law’ as the common law of England. Common Law is the oldest form of law and derived from the English courts over many centuries. English colonist brought common law principles into Malaysia and these principles formed the foundation of the legal system in this country. The Malaysian legal system and its laws follow closely the English common law principles and also applies judgements and decisions by the English courts in deciding cases. A more specific endorsement of English law has been made by the Civil Law Act 1956 (‘the Act’) where s 3 of the Act provides, inter alia, that the English law applicable in Malaysia means common law, rules of equity and certain statutes. The above three components of English law can only be applied in Malaysia subject to certain limitations mentioned in s 3 of the said Act. The extent to which English common law is applicable in Malaysia is discussed in this article with reference to the English House of Lords decision in Derbyshire County Council v Times Newspapers Ltd [1993] 1 All ER 1001, where the Law Lords cemented the principle that local authorities and local government bodies could not sue for defamation. Since the Derbyshire principle is based on the common law of England propounded by the English apex court in 1993, it is important to determine the extent to which the common law of England can be applied in Malaysia. Application of English common law in Malaysia: The Civil Law Act 1956, ss 3 and 5 The current reception or application of English common law in Malaysia is governed by ss 3 and 5 of the Civil Law Act 1956 (Revised 1972) (‘the CLA’). Section 3 allows for the application of English common law, rules of equity, and statutes in civil cases where no specific laws have been enacted.5 Meanwhile, s 5 deals with the application of English commercial law.6 The application of English law is however, subject to certain qualification for example, in s 3 the qualifying words are, ‘save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia’. Again, the exception to s 3(1) provides that ‘the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary.’ Similarly, pursuant to s 5, English commercial law applies, ‘unless in any case other provision is or shall be made by any written law.

In Che Minah bt Remeli v Pentadbir Tanah, Pejabat Tanah Besut, Terengganu & Ors,7 Zaleha Zahari JCA stated: ‘Common law still reigns supreme in this country. It is still in vogue. Let it be known to all and sundry that the common law is here to stay’. In Hong Leong Equipment Sdn Bhd v Liew Fook Chuan and another appeal,8 Gopal Sri Ram JCA provides the caution when adopting foreign legislations including their decisions. His Lordship stated: ‘However eminent an English or an Australian judge may be, it is not to be forgotten that the views he expresses are coloured by the needs of the society of which he is a member. We, on the other hand, have to address the needs of a society quite differently structured, with different aspirations based on an entirely different set of values. Our courts should therefore adopt an approach that is best suited to our own needs and values paying such respect as are due to the approach adopted by the courts of the countries whose values upon particular subjects may be at variance with our own’. The guidelines that ought to be followed by the courts when faced with the issue whether to apply English common law pursuant to s 3 of the CLA has been explained by Abdul Hamid Mohamed J (as he then was) in Nepline Sdn Bhd v Jones Lang Wootton.9 His Lordship said: In my view the approach that the court should take is first to determine whether there is any written law in force in Malaysia. If there is, the court need not look anywhere else. If there is none, then the court should determine what is the common law of, and the rules of equity as administered in, England on 7 April 1956. Having done that the court should consider whether ‘local circumstances’ and ‘local inhabitants’ permit its application, as such. If it is ‘permissible’ the court should apply it. If not, I am of the view that, the court is free to reject it totally or adopt any part which is ‘permissible’, with or without qualification. Where the court rejects it totally or in part, then there being no written law in force in Malaysia, the court is free to formulate Malaysia’s own common law. In so doing, the court is at liberty to look at any source of law, local or otherwise, be it common law of, or the rules of equity as administered in England after 7 April 1956, principles of common law in other countries, Islamic law of common application or common customs of the people of Malaysia. Under the provision of s 3 of the CLA, I think, that it is the way the Malaysian common law should develop.10 As from the above, where there is a lacuna in the local law, the court is duty bound to refer to English law and for this the court must observe the three statutory hurdles, namely, the ‘cut-off dates’, ‘local circumstances’, and ‘local inhabitants’. If the English law passes these hurdles, then it shall be applied by the court. However, if it fails to comply with any of these requirments, then the court may either adopt part of the English law, whether with or without qualification, or reject it completely. Where the court decided to reject the English law completely or in part, and there being no written law in Malaysia, the court is allowed to develop the Malaysian common law and the court then is free to refer to ‘any source of law, local or otherwise, be it England after 7 April 1956, principles of common law in other countries, Islamic law of common application or common customs of the people of Malaysia’.11

Defamation action against local authorities and local government bodies: The principles in Derbyshire County Council v Times Newspapers Ltd & Ors [1993] 1 All ER 1011 Freedom of speech and expression is undoubtedly a valuable and cherished right possessed by a citizen and this right is enshrined in art 10(1)(a) of the Federal Constitution (‘the FC’). However, no one should make irresponsible accusations against another under the guise of freedom of speech and expression. To allow an absolute and unfettered freedom to defame another in the name of freedom of speech and expression would only allow lawlessness to prevail. Hence, art 10(2) of the FC permits the imposition of reasonable restrictions on the citizen’s right to freedom of speech and expression in the interest of, inter alia, public order, security of state, decency or morality and impartial justice. In addition, Parliament has also enacted laws relating to defamation, sedition and offensive language. This includes the Defamation Act 1957, Sedition Act 1948, Printing Presses and Publications Act 1984 and s 499 of the Penal Code. Where a defendant recklessly maligns the plaintiff with impunity, the plaintiff has a right to protect his or her reputation and this includes filing a defamation action in tort against the defendant, unless the defendant can establish one of the many defences available in a defamation action. The burden is on the plaintiff to show that, the impugned statements or words were defamatory, the words complained of must refer to the plaintiff; and that the words had been published. 12 Significant to this article is the issue whether the defamatory rule applies to government bodies, whether local or central, to maintain an action for damages for defamation. This issue is discussed with reference to the House of Lords decision in Derbyshire County Council v Times Newspapers Ltd & Ors.13 In Derbyshire County Council, the House of Lords laid down the principle that a local authority and local government body could not sue for defamation. In affirming the Court of Appeal’s decision, the Law Lords held, inter alia, that it was of the highest public importance that a local authority must be open to criticism as political and administrative body, and so cannot be allowed to sue in defamation. The underlying value which supported the decision was the freedom of speech where it was stated, inter alia, that a governmental body should be open to uninhibited public criticism, and a right to sue for defamation would place an undesirable fetter on freedom of speech. In Derbyshire’s case, the respondent published two articles in The Sunday Times newspaper dated 17 and 24 September 1989 questioning share deals involving the superannuation fund of the Derbyshire County Council. The articles questioned the propriety of investments made by the council in its superannuation fund. The council claimed, inter alia, that the articles had injured its credit and reputation and that it had brought the council into public disrepute. This raised the question whether a local authority could claim for libel in respect of its administrative or governing reputation. On appeal, the House of Lords affirmed the decision of the Court of Appeal14 that an organ of local government cannot maintain an action for defamation. Lord Keith of Kinkel delivering the unanimous decision of the House of Lords stated: ‘It was of the highest importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on

freedom of speech. ‘The chilling effect’ induced by the threat of civil actions for libel was very important’. The application of Derbyshire’s principle is somewhat uncertain in Malaysia. As noted earlier, for English common law to be applicable in Malaysia it has to pass through the following hurdles namely, the ‘cut-off dates’, ‘local circumstances’, and ‘local inhabitants’. The Derbyshire’s principle was propounded by the House of Lords in 1993 and thus, not applicable in Malaysia as it was decided way after the cut-off dates mentioned in s 3(1)(a), (b) and (c) of the CLA. In Lembaga Tanah Persekutuan and Anor v Dr Tan Kee Kwong,15 Zabariah Mohd Yusof J had refused to follow the Derbyshire principle because public interest demands that organs of local authorities have the right to protect its reputation. In particular, the learned judge stated: There is a need for organs of local authorities to protect its reputation. In fact it is in the public interest to do so and the need to be able to do so is indeed real and pressing. Damage to reputation may affect the ability of local authorities to obtain loans, borrow money or tender for contracts not to mention that public may not be too keen to be part of the staff of such body, which may crippled the functions of the local authority. On appeal, the Court of Appeal,16 by a majority decision, affirmed the trial court’s decision. In particular, Linton Albert JCA (as he then was) delivering the majority decision stated: It was submitted on behalf of the respondent that the principle in Derbyshire County Council ought to be applied as it has been applied in several commonwealth jurisdictions. With respect, we do not find any justification for applying the Derbyshire County Council principle here. In particular, section 15(1) of the Act gives the appellant the right to sue and be sued. It would be preposterous for the court to take away a statutory right by the application of English common law principles. Even section 3(1)(a) of the Civil Law Act which allows the application of English common law does not contemplate its application beyond what is administered on 7th day of April, 1956. Again, in Tony Pua Kiam Wee v Syarikat Bekalan Air Selangor Sdn Bhd,17 the Court of Appeal noted that the Derbyshire rule has not been followed by the Malaysian courts. Anantham Kasinather JCA, delivering the judgment of the Court of Appeal, stated: The local authorities recognise the right of private companies involved in the provision of public services to sue in defamation. The reasons advanced by English authorities such as Derbyshire County Council v Times Newspapers Ltd & Ors [1993] AC 534 in denying this right to a company performing a similar role to the respondent in the United Kingdom to institute proceedings in defamation, to date has not been accepted by our courts as the law of this country. As we do not consider the impugned words to be defamatory, we do not propose in this judgment to interfere with the ruling of the learned trial judge that the respondent enjoyed the necessary locus to institute a claim for defamation against the appellant.

However, the High Court in Kerajaan Negeri Terengganu & Ors v Dr Syed Azman Syed Ahmad Nawawi & Ors (No 1) 18 and Kerajaan Negeri Terengganu & Ors v Dr Syed Azman Syed Ahmad Nawawi & Ors (No 2)19 had applied the Derbyshire principle. In Dr Syed Azman Syed Ahmad Nawawi & Ors (No 1), the plaintiffs alleged that the article by the defendants in ‘Harakah’ entitled ‘Seleweng RM30j bantuan sekolah’ in relation to the aid or assistance programme for the poor students in the state, were defamatory. The defendants, on the other hand, contended that the first plaintiff, being a state government, could not be made a party to the action and that such action was an abuse of court process. The High Court was faced with the issue, inter alia, whether the first plaintiff could maintain an action against the defendants for defamation. The High Court held, inter alia, that to allow the state government to institute or maintain any action for libel or slander against any person would be contrary to public interest as the same does not have a personal reputation to protect, neither does it have a governing reputation to protect. In particular, Yeoh Wee Siam J stated: Thus far, while Parliament has enacted various Acts which it deems necessary or expedient to restrict the freedom of speech and expression such as the Sedition Act 1948, Official Secrets Act 1972, Printing Presses and Publications Act 1984, and laws on the control of imported publications, it has not enacted any law expressly to provide for the matter on whether the federal government or state government can institute civil proceedings for libel or slander against such government, or any of its servants or officers. The Defamation Act 1957 is an Act of Parliament relating to the law of libel and slander and other malicious falsehoods. However, nowhere does the Act contain any provisions on the issue whether a state government should be allowed to maintain an action for defamation. In view of the absence of express statutory provisions to deal with the above first issue, it can be safely concluded that we have resort to common law. The common law position is spelt out in very clear and precise terms by the House of Lords in Derbyshire. Accordingly, I adopt the principles laid down in Derbyshire, and hold that the first plaintiff, which is the Government of the State of Terengganu, is a public authority. As such it does not have a personal reputation to protect. Neither does it have a governing reputation, as in the case of a corporation or statutory body/authority, to protect. The state government is duly elected by the members of the public through the democratic process and it should be transparent and accountable to the electorate. There should be freedom of speech and expression by members of the public in order to act as a check and balance on the executive and the government. It is therefore not in the interest of the public that the state government be allowed to institute or maintain any action for libel or slander against any person. Otherwise, it would stifle constructive queries or comments which can contribute to and ensure good governance of the subjects by the state government. There can be no financial loss suffered by the state government even if defamatory statements are made against it by any person. In a situation where there

is evidence of defamation, the offender can be prosecuted by the public prosecutor for criminal defamation under s 499 of the Penal Code. In the past nearly 55 years in this country since Merdeka Day, there does not appear to be any action maintained by any state government, or even the federal government, against any member of the public or any corporation or body for defamation, and which claim has been allowed by the courts. It is therefore my humble opinion that such sound tradition and good precedent are in the best interests of each and every of our citizens, and that should be jealously guarded and upheld for posterity, for the common good. Again, in the Dr Syed Azman Syed Ahmad Nawawi & Ors (No 2) case, Yeoh Wee Siam J, while adopting the Derbyshire principle, held, inter alia, that the second plaintiff who sued in his capacity as Menteri Besar of the State of Terengganu should not be allowed to use his official position to sue any member of the public concerning comments on his administration within the state government. He could maintain the action for defamation if he sues the defendants in his personal capacity. In particular, the learned judge stated: It is trite practice and procedure that when a person sues another person in his personal capacity, there is no necessity or requirement that he states his position/capacity in brackets below his name as the plaintiff. However, if he is suing in a specific capacity, other than in his personal capacity, then he has to state such capacity in brackets below his name eg in the case of the third and fourth plaintiffs in the present case, the words ‘(trading as Hanie Enterprise)’ are stated below their respective names to indicate that they are suing in their trading or business capacity. If the second plaintiff had intended to sue the defendants in his personal capacity, he would not have added his official position in brackets after his name in the heading to the civil suit. Since he had done so expressly, and by construing this together with all his averments in his statement of claim, the court is satisfied that the second plaintiff has no capacity to maintain this action for defamation in his official capacity. To allow him to do so would be contrary to the rationale and the principles which I had laid down and applied from the House of Lords case in Derbyshire County Council v Times Newspapers Ltd And Others [1993] 1 All ER 1011 (see my decision dated 27 July 2012).20 Similarly, in Utusan Melayu (Malaysia) Berhad v Dato’ Sri Diraja Haji Adnan bin Haji Yaakob,21 the Court of Appeal, by a unanimous decision,22 followed the Derbyshire principle and held that by virtue of his public office, that is, as the Menteri Besar and as the elected representative, the respondent should be open to public criticism and could never be defamed, hence, he ought to be precluded from suing for defamation. In particular, Idrus Harun JCA, delivering the judgement of the court, stated: [T]he respondent by virtue of his public office, having sued in his official capacity which he may not have expressly described, has no

locus standi to do so, but having done so, we are loath to allow the action to proceed any further as such the action must necessarily fail. This claim plainly comes within such category of claim that we can safely say to be obviously unsustainable. We reach the conclusion stated with little hesitation because there is, as it is obvious to us, the public interest considerations in this case which, on balance, does not favour the right of ...