Here’s why DAP and PH can’t sue Hadi Awang for defamation despite his continuous slanderous allegations

Recently, PAS president Tan Sri Abdul Hadi Awang was summoned by the Royal Malaysia Police (PDRM) for alleged seditious statements he made during the 15th General Election (GE15). As reported by Astro Awani, following several police reports being lodged against him, Hadi ended up spending almost 2 hours giving a statement at the Sentul district police headquarters.

One of the police reports was from DAP Secretary and Member of Parliament (MP) for Kepong, Lim Lip Eng after the PAS president had made remarks linking Pakatan Harapan (PH) to communism and blasphemy at a ceramah in Temerloh, Pahang. Besides that, on 28 November 2022, the PAS president also attacked DAP and claimed that the party is spreading Islamophobia and is bent on “destroying” Islam in a lengthy Facebook post.

PDRM has since confirmed that Hadi is being investigated under Section 505 of the Penal Code for allegedly making statements which could cause public mischief and Section 233 of the Communications and Multimedia Act 1998 for misuse of network facilities. However, this doesn’t seem to bother the PAS president as he doubled down on his tirade against DAP and PH by continuing to associate them with wild allegations that are unsubstantiated and downright slanderous.

On 9 December 2022, Hadi, who is also the MP for Marang accused DAP of exploiting divisions in the Malay polity and that the party is “clearly anti-Islam”. A couple of days prior, he claimed that gambling companies and tycoons are only worthy to be with PH.

The endless saga of Abdul Hadi vs DAP

Of course, for those that have been following Malaysian politics, Hadi’s antics are nothing new. Once united under Pakatan Rakyat, DAP has been at the receiving end of Hadi and his party’s attacks since the coalition disbanded in 2015.

The Marang MP’s constant slanderous remarks remain mostly without any repercussions though, with many questioning why DAP and PH never took legal actions against the PAS President. For a layman, this is even more perplexing given that newly appointed Prime Minister Datuk Seri Anwar Ibrahim has already initiated 3 legal actions against PAS leaders for defamatory remarks against him less than a month into his premiership.

So, why haven’t DAP and PH sued Hadi for defamation despite his flurry of slanderous remarks? Well, the answer to that query is rather straightforward:

They are simply unable by law to do so

Political parties can’t sue for defamation

Ironically, the very case that set the precedent for political parties not being able to be claimants in defamation suits actually involves DAP. In fact, the case involves an individual that had lodged a police report against Hadi, Lim Lip Eng.

Earlier this year, in the case of Lim Lip Eng v Ong Ka Chuan (as a public officer of a society registered as Malaysian Chinese Association) [2022] 5 CLJ 847, the Federal Court ruled that political parties can’t sue individuals for defamation as they “do not have a reputation for which it may maintain an action for damages for defamation”. Prior to this case, the question of whether political parties can sue or be sued for defamation was never directly addressed in our country.

 “Reputation” is an essential element in the law of defamation and the seven Federal Court judges were unanimous in their finding that a political party is not a legal entity which can assert or claim any reputation. Furthermore, the bench also came to the conclusion based on the decisions in Goldsmith v Bhoyrul [1998] Q.B. 459 and Rajagopal v Jayalalitha [2006] 2 MLJ 689.

This is also in line with the Societies Act 1966 which classifies a political party as being a “society” and in turn makes it not a legal entity on its own. Section 9(c) of the Societies Act 1966 is as follows:

Hence, according to the Federal Court, a political party was dependent on its members to take action, therefore it is not a legal entity by itself that can sue or be sued for defamation.

The landmark case of Lim Lip Eng v Ong Ka Chuan

To understand the subject at hand better, let’s take a step back and get the context behind the landmark case. In July 2017, Ong Ka Chuan, on behalf of MCA, filed a defamation suit in his capacity as a public officer against Lim. This was over remarks that the DAP man had made during a press conference in Parliament a year earlier that the MCA had allegedly used government funds allocated for Chinese vernacular schools.

MCA claimed that Lim had implied that the party was corrupt and sought compensation for the tarnished reputation as a result of his statement. When the case was heard at the High Court, Lim applied to strike out the defamation suit on the grounds that MCA, being a political party, had no locus standi or legal standing to file such a suit.

The High Court then dismissed Lim’s application to strike out the suit, to which he appealed. Afterwards, Lim’s application was again dismissed, with the Court of Appeal affirming the High Court’s decision. It was only at the Federal Court where the decision was overturned, with all seven preceding judges unanimous in their finding that the suit must be striked out because the respondent, Ong filed the defamation suit not for himself but for his political party. 

Another interesting tidbit from the judgement of the case is how the Federal Court found that if a political party was allowed to sue for defamation, it would go against the true value of democracy. This is because a political party relies on the public to get votes to be in power and it is therefore not right, nor in the public interest to put the public in fear of being sued and prevent them from expressing their views.

Moreover, the Federal Court also said that a political party should not be “thin-skinned” and must always be open to public criticism. More so, given how they should have all the resources to counter any unflattering comments made against them.

Of course, this doesn’t mean that politicians are free to spread misinformation and slander against political parties for the sake of gaining votes. It just means that political parties can’t file a defamation suit against them.

There are other laws and legislations out there to prevent such irresponsible behaviour, more so, if such statements could be seditious and instigate unrest. However, that is a discussion for another day.

For more insights into the Malaysian legal system such as this, do make sure to follow us on Facebook and Instagram or visit our official website. You can also read our articles on the popular Malaysian news aggregator app Newswav here.