(Petaling Jaya, Monday): I welcome the statements by the present and former Bar Council Presidents that judgments of courts are not immune from criticism and fair comment.
Bar Council Chairman Dr. Cyrus Das said in yesterday’s press that proper and constructive criticism of judgments of courts is permissible in a free and democratic society like Malaysia.
He said: "The requirements is that the criticism must be bona fide and use temperate language. Under the law, what is prohibited is to suggest that a judgment is corrupt or biased. The law strikes a balance between the two and this position has been recognised in several cases in our highest courts."
Former Bar Council Chairman, Zainur Zakaria, in a letter to the editor in New Straits Times today, wrote:
"Of concern to me are the remarks of the presiding judge, where he was quoted to have said: ‘It is time that the court sends a clear message that it cannot tolerate any attack on the judiciary’.
"This statement gave me the impression that the judiciary would no longer countenance any criticism of itself.
"I do not propose to discuss the merits of the case, but it would appear from the report that Lim (Guan Eng) was charged for maliciously printing false news under the Printing Press and Publications Act 1984 and the Sedition Act 1948.
"According to the report, the charges stemmed from a talk given by Lim where he had questioned the country’s laws after the Attorney-General’s decision not to prosecute former Malacca Chief Minister Tan Sri Rahim Tamby Cik for the alleged rape of an underaged girl due to insufficient evidence, and also Lim’s dissatisfaction with the decision of the magistrate’s court to order the detention of the 16-year-old girl at a rehabilitation centre, contending that Rahim should have been jailed instead.
"In respect of the former, I do not see how that can be construed as an attack on the judiciary.
"As for the latter, it is not uncommon for the public today to comment or criticise decisions of the court.
"Only recently, the Minister for Science, Technology and Environment expressed his views that the courts should impose stricter penalties on those who breached environmental laws, and the judiciary in response thereto dutifully complied.
"Even the Prime Minister had expressed his views on decisions of the court, for instance in the Asian Rare Earth case and more recently over the High Court decision in the Bakun case.
"The right to express one’s view of the judiciary is consonant with the right to freedom of speech and expression enshrined in Article 10 of the Federal Constitution.
"This right, however, must be balanced against the need to protect the dignity and integrity of the courts."
"In order to maintain public confidence not only in the judiciary but also the legislative and executive arms of the democratic process of government, the public cannot be denied the right to express their views over the discharge by these respective bodies of their duties and functions, and particularly over those involved in the administration of justice.
"No one, no organisation, no body can claim to be without fault, mistake or wrongdoing.
"Criticisms which are made within the bounds of the law, in good faith and without malice, should be accepted with an open mind and objectively.
"There seems to be a growing tendency in our country for those in authority to react angrily toward criticisms against them and refusing to acknowledge that some of these criticisms are well-founded.
"The law has been developed through the sacrifices of those who had the courage to stand up and speak out against what they perceived to be wrongdoings by those entrusted with authority."
The Court of Appeal decision to enhance Guan Eng’s sentences from RM15,000 fines to three years’ jail is not only tragic for Guan Eng but for the Malaysian society, as it has far-reaching implications on the freedom of expression in Malaysia; the role of MPs to conscientiously and diligently discharge their duties to speak up for the weak and the defenceless against the strong, wealthy, powerful and influential; how to ensure accountability and transparency in the office of the Attorney-General and to check against selective prosecution; public confidence in the Judiciary; the ability to restore confidence in the worst economic crisis facing the nation by mobilising the government, society and people as one unit to effect a national economic recovery and turnaround in the shortest time possible; the international image of Malaysia; the nature of a civil society we want to build in Malaysia and the future of democracy itself.
The 36 months’ jail sentence on Guan Eng is doubly tragic as he never attacked the judiciary. All he did was to respond to the pleas for help of a Malay grandmother who had nowhere to turn to in the fight to defend the human rights and woman rights of her underaged grand-daughter against the mighty and powerful Malacca Chief Minister at the time,Tan Sri Rahim Tamby Cik.
Guan Eng went to the help of the Malay grandmother and her underaged grand-daughter because of the manifest injustice where the victim of statutory rape was in detention while Rahim was free. Now, this saga of injustice as been further compounded where, added on the previous episode of the underaged girl in detention, Rahim free, the latest sequel is Guan Eng to go to prison!
This is why there has been such a nation-wide shockwave of disbelief and outrage that a conscientious MP who stood up to defend the human rights and woman rights of a Malay underaged girl when her grandmother could get no help from any other quarter, should now face the prospect of a three year jail sentence.
When the judiciary’s interpretation of justice is completely at variance with the society’s understanding of justice, as in the case of the 36-month jail sentence for Guan Eng for defending the human rights and woman rights of the underaged Malay girl , something is very wrong with the whole system of the administration of justice - and this is something which all Malaysians have a right to express their concern and their views, apart from showing full support, sympathy and solidarity with Guan Eng.
I appreciate the public statement by the former Bar Council Chairman, Zainur Zakaria that he could not see how Guan Eng’s questioning of the Attorney-General’s different handling of the case of Rahim and the underaged girl could be construed as an attack on the judiciary for the simple reason that Guan Eng had never set out to attack the judiciary, and had never attacked the judiciary.
If there was anyone he censured, it was the Attorney-General, and this is why the claim by the Attorney-General, Tan Sri Mohtar Abdullah last Saturday that the prosecution of Guan Eng was not "politically-motivated" had no credibility whatsoever, whether among Malaysians or in international circles.
In this connection, I refer to the statement by Dr. Cyrus Das in yesterday’s press that the Bar Council had made enquiries in connection with news reports on April 2 quoting Court of Appeal judge Gopal Sri Ram saying that "it will not tolerate any attack on the judiciary" and had found that "the quote was not accurately reproduced in the newspaper".
I am surprised by this statement, as I was in the Court of Appeal last Wednesday and heard what Sri Ram said when dismissing Guan Eng’s appeals against conviction and sentence and allowed the Public Prosecutor’s cross-appeal by enhancing the RM15,000 fine to three years’ jail.
I can vouch that Sri Ram said very categorically that "It is time that the court sends a clear message that it cannot tolerate any attack on the judiciary" and my sense of outrage as Guan Eng had never attacked the judiciary but only wanted to go to the defence of the human rights and woman rights of the underaged Malay girl.
I believe all those who were in the Court of Appeal last Wednesday, including the other two Court of Appeal judges, namely Datuk Siti Norma Yaacob and Denis Ong, both the DPPs as well as the defence counsel, and members of the public can vouch that Sri Ram had made the statement.
What is it that Sri Ram is now saying he did not say in open court last Wednesday when enhancing Guan Eng’s sentence to 36 months’ jail?