There has been a flurry of civil suits in our country recently involving politicians, usually in regard to alleged defamatory remarks. The latest which has been making headlines nationwide has got to be the former Minister in the Prime Minister’s Department (Religious Affairs) Datuk Seri Dr Mujahid Yusof Rawa’s defamation suit against PAS.
As reported by FMT, Mujahid, who is also Amanah vice president, is taking legal action against PAS for a malicious posting on the party’s official Facebook page on 16 October 2022. The post, titled “Mantan menteri agama PH sokong LGBT?” or translated to English as “Former Pakatan religious minister supports LGBT?” makes direct references to Mujahid and even used his photo.
The former Religious Affairs Minister stressed that the post implied that he allowed, supported and accepted the LGBT community and thus damaged his reputation and credibility. Furthermore, Mujahid also said that the post has caused him to suffer emotional stress.
The writ of summons by the Amanah vice-president was filed on 15 December 2022 and seeks an order for PAS to withdraw and delete the article and his picture in the post, a public apology and an injunction against further publication. In the suit, PAS Secretary-General Datuk Seri Takiyuddin Hassan was named as the defendant on behalf of the party. As of the time of writing, the post in question is still up on PAS’ official Facebook page here.
The alleged defamatory article
PAS has since responded to the suit and applied to strike it out. According to The Star, PAS asserted that Mujahid’s statement of claim was flawed and invalid because he failed to name the offender who had control of and published the alleged defamatory article.
PAS and Takiyuddin further claimed that the control or management of the Facebook account is under the control of a third party and that the defendant doesn’t have any control over it. The application to strike out the suit will be heard before Justice Ahmad Shahrir Salleh at the Kuala Lumpur High Court this 21 June.
With the context and background laid out above, the defamation suit is definitely intriguing and not as straightforward as it sounds. More so, given the claim by PAS that the Facebook page is managed by a third party.
However, it seems likely that the suit may ultimately fail should it go to trial. This is because Mujahid is taking action against a political party, an entity that can’t sue or be sued for defamation.
Join us as we break it down below:
Political parties can’t be sued for defamation
Last year, in the landmark 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, a binding precedent was set after the Federal Court ruled that political parties can’t be claimants or respondents for defamation. This was because they “do not have a reputation for which it may maintain an action for damages for defamation”.
Moreover, “reputation” is an essential element in the law of defamation. In the landmark case, all 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.
According to the judgement, the Federal Court came to this conclusion by referring to the decisions in Goldsmith v Bhoyrul [1998] Q.B. 459 and Rajagopal v Jayalalitha [2006] 2 MLJ 689.
Besides that, the Societies Act 1966 also 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 reads:
In relation to that, the Federal Court found that a political party is not a legal entity by itself because it was dependent on its members to take action. Besides that, the judgement in the case of Lim Lip Eng v Ong Ka Chuan found that the respondent filed the defamation suit not for himself but for his political party, hence it must be struck out.
Mujahid can’t sue PAS for defamation, but may do so against an individual or any other legal entity
Applied to the subject matter at hand, the former Religious Affairs Minister’s suit will fail if PAS is named as the defendant because it is a political party. While the case of Lim Lip Eng v Ong Ka Chuan was essentially the other way around, ie a political party suing instead of being sued, the Federal Court judgement clearly established that a political party is not a legal entity that can be sued.
However, Mujahid may file a defamation suit for the alleged defamatory remarks should the defendant be an individual or any other legal entity. Accordingly, he may sue Takiyuddin if it can be proven that the alleged defamatory article was written by him or was posted under his instruction.
Besides that, should the PAS Secretary-General’s statement that the Facebook account is controlled by a third party, Mujahid can initiate a defamation suit against the said party. In fact, the Amanah vice president had previously settled a defamation suit with PAS’ official mouthpiece Harakah which ended with the reporter who wrote the defamatory article, Aziz Muda, issuing a public apology to Mujahid.
The public apology issued by Harakah reporter to Mujahid
Moving forward, it would be interesting to see the High Court’s decision on PAS’ application to strike out Mujahid’s suit this June. Whatever happens, it is important for all parties to remain calm and let the law take its course.
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