By Andrew Loh –
In April, faced with a letter of demand from a statutory board for emails she had sent out, Ms Han Hui Hui, 21, turned to the courts to declare that a governmental body has no right to sue for defamation.
In its letter then, the Council of Private Education (CPE), the statutory board in question, demanded that Ms Han refrained from further publication of the alleged defamatory emails, and to make a public apology, or face legal action.
That was when Ms Han turned to the courts with the help of her lawyer, M Ravi, to seek a declaration that the CPE “being a government body with corporate status does not have a right to sue for defamation or threaten to sue for defamation under common law.”
The Attorney General’s Chambers (AGC) later joined in as an “intervening party” on the side of the CPE, in the matter.
The CPE, represented by Allen and Gledhill, argued that the CPE was not a governmental body. “The starting point must be that CPE is separate and distinct from the Government,” it said. “The ‘Government’ does not include statutory bodies established under Acts of Parliament….”
It also said that according to the Private Education Act, the CPE is a “body corporate” capable of suing and being sued.
In any case, it said “the issue of whether a statutory board such as the CPE ought to have a right to sue or threaten to sue for defamation should be determined by Parliament, rather than the Courts.”
In his submissions, M Ravi argued that the CPE’s roles went beyond that of any private institution. “The Defendant is not an educational institution, but a regulator and accreditor of educational institutions,” M Ravi said. “This is a critical distinction.”
He also argued that the issue is not whether a defamatory statement could cause harm to the governmental body, as the CPE had claimed. Instead, he said, it is whether the prospect of defamation proceedings constitutes a limitation on free and open scrutiny and criticism of a governmental body, such as the CPE.
Freedom to criticise
He cited the 1993 case of Derbyshire County Council v Times Newspapers Ltd and others in the United Kingdom.
In that case, the County Council wanted to sue the papers for defamation over the “propriety of certain investments made by the council in administering its superannuation fund.” In their judgement, the House of Lords declared:
“It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism.”
M Ravi also cited the 2006 case of the Corporation of the Town of Halton Hills and Terry Alyman v. Al J. Kerouac, where the Corporation wanted to sue Kerouac, the editor of the Halton Herald newspaper.
In his judgement, Justice Corbett J said:
“When a government is criticized, its recourse is in the public domain, not the courts. The government may not imprison, or fine, or sue, those who criticize it. The government may respond. This is fundamental. Litigation is a form of force, and the government must not silence its critics by force.”
It is a principle, M Ravi says, adhered to by most Commonwealth countries. “The weight of authority in the Commonwealth (of which Singapore is a member),” he said, “appears to be leading towards an acceptance of the principle that governmental bodies are subject to open criticism free from risk of defamation suits.”
Now, however, Ms Han’s case will no longer be heard in the courts as she has accepted the CPE’s settlement offer on 8 October.
The offer, unsolicited by Ms Han, was based on conditions that it is made “without any admission to liability” and “without prejudice” to the CPE.
Among the conditions, the CPE said it would not be seeking costs, and it “undertakes and agrees not to commence legal proceedings (including defamation proceedings)” against Ms Han, if she accepted the settlement.
According to the Straits Times on 9 October, the CPE said in a statement that “it would not be taking further action on this matter, because Ms Han had closed her blog and Facebook page on April 24 this year.”
When contacted, however, Ms Han said she had never closed down her blog or her Facebook page and that they have always been active and available.
Amend the Defamation Act?
In a statement released after the settlement, M Ravi said that according to the Derbyshire principle, “individuals should be free to criticise government institutions and their agencies without fear of being sued for defamation” and that this has been adopted in many countries, including the UK, Canada, Australia, India, South Africa and Malaysia.
“In the United States, this principle has stood for nearly a century,” M Ravi said.
“I hope that Parliament will act soon to amend the Defamation Act to ensure that government agencies do not continue to use tax-payers’ dollars to fund actions against their own citizens in Court. The government – particularly in Singapore where the mainstream media is state-controlled – has ample resources and opportunity to respond to any inquiry or criticism raised by the public without resorting to punitive civil action against private individuals.”
This article was first published on Yahoo! Singapore