PETALING JAYA: A High Court lawyer today disputed a claim that the Malaysian Anti-Corruption Commission (MACC) would be acting against the Federal Constitution if it proceeds with its planned legal action against Penang Chief Minister Lim Guan Eng.

David Gurupatham said the assertion, made by PKR’s Padang Serai MP N Surendran, may not be accurate in law.

“Unlike the common law of England, based on what is commonly known as the Derbyshire principle, proceedings by or against the government are not bound by common law rules but are regulated by statute,” he said.

Citing Section 3 of Malaysia’s Government Proceedings Act 1956, which deals with the government’s right to sue, he said it did not exclude proceedings in libel or defamation by or against the government.

“Section 3 gives the government the same right as a private individual to enforce a claim against another private individual by way of civil action. It is a statutory right and not a common law right,” he said in a statement.

On Sept 6, Surendran had said Lim had been “well within” the protection of free speech guaranteed by the Federal Constitution when he reportedly described the MACC’s detention of Penang state executive councillor Phee Boon Poh last month over an unlicensed factory, as “illegal”.

Surendran had said defamation actions were available to private persons, but not to public-funded bodies such as the MACC. He added that this was an “obvious and basic principle” to ensure transparency and accountability among public-funded bodies.

“Even though in its statement the MACC says it respects the right of any quarter to criticise it, its action in this case, from a constitutional standpoint, is to effectively prohibit such criticism.

“It is unconstitutional for the state or public bodies to prohibit criticism of their actions. Doing so would be in breach of Article 10 of the constitution,” Surendran had said.

 Gurupatham however said the right to freedom of speech and expression guaranteed by Article 10 was not an absolute and unfettered right.

“The issue is not whether it is in the public interest to allow the government to sue for defamation,” he said. “If the law allows it, and it is not unconstitutional, then it cannot be against the public interest.”

He said this was the position taken by the Court of Appeal in Government of the State of Sarawak and the State Financial Authority versus Chong Chieng Jen in 2014.

He added that the courts would decide if Phee’s arrest was illegal, and would also tackle the issue of MACC’s right to sue for defamation.

On Sept 5, the MACC said it would take Lim to court after he refused to apologise over the reported statement.

It said the decision by its top management was unanimous, adding that it had no vested interest in its investigations.

On Aug 25, MACC chief commissioner Dzulkifli Ahmad gave Lim 48 hours to issue an unconditional apology to the commission or face legal action.