Call on Mohtar Abdullah to declare whether he agrees with Justice Gopal Sri Ram’s obiter dictum that any public criticism of the the Attorney-General’s discretionary prosecution powers is an offence of sedition and not permissible by the laws of Malaysia

(Petaling Jaya, Thursday): I am very dissatisfied with the failure of the Deputy Minister in the Prime Minister’s Department, Datuk Nazri Aziz during the debate in Parliament on the Courts of Judicature (Amendment) Bill 1998 to give a proper and satisfactory answer on the government’s stand on whether public criticism of the Attorney-General’s discretionary prosecution powers is permissible by the laws in Malaysia or whether it is an offence of sedition to criticise the Attorney-General.

Both the DAP MP for Jelutong, Karpal Singh and myself raised this issue during the debate on the Courts of Judicature (Amendment) Bill on Tuesday and yesterday, but Datuk Nazri gave a most evasive and unsatisfactory answer.

This is an important issue which concerns the principles of responsibility, accountability and transparency of the office of Attorney-General as to whether his discretionary powers under Article 145 (3) "to institute, conduct or discontinue any proceedings for an offence" can be challenged and be the subject of public criticism for any abuse of power, selective prosecution or any application of double standards, or whether the Attorney-General enjoys absolute immunity from any public discussion or criticism of the exercise of his discretionary prosecutorial powers protected by the Sedition Act.

The issue as to whether the Attorney-General is subject to the principles of responsibility, accountability and transparency where the exercise of his discretionary prosecution powers is subject to public discussion and criticism or whether his powers enjoy immunity protected by the Sedition Act has now become an important public issue in Malaysia as a result of the Court of Appeal judgement of Justice Gopal Sri Ram in the case of Public Prosecutor v. Lim Guan Eng when rejecting Guan Eng’s appeals against conviction and sentence on Sedition Act and Printing Presses and Publications Act charges and allowing the cross-appeals of the Public Prosecutor, resulting in the enhancement of the sentences from RM15,000 fine to 36 months’ jail.

In his judgement, Justice Gopal Sri Ram said:
 

"It would be quite wrong to assume that the administration of justice is confined to matters actually pending before a court of law. It includes steps that are necessarily antecedent to, and fairly connected with, the invoking of the court’s process."

After quoting a passage from Lord Diplock’s judgment in Attorney-General v. Times Newspapers Ltd (1974) A.C.,  Gopal Sri Ram said:
 

"Thus, the public pillorying of the Attorney-General for exercising any of his powers under Article 145(1) of the Federal Constitution in one way rather than another would fall squarely within the purview of section 3(1) of the Sedition Act 1948.  To allege double standards against the Public Prosecutor in deciding which cases ought to be brought before the courts (which is the thrust of the words in the first paragraph of the second charge) amounts to denigrating and undermining the administration of criminal justice."

Can this be the law of the land?  This passage in the judgement is very surprising because this was never an issue and it was never canvassed at the Court of Appeal whether by the Public Prosecutor or the defence counsel and therefore can have  no binding authority.  In legal terms, what Gopal Sri Ram said on the Attorney-General’s powers is mere obiter dictum, which is  "a judge’s expression of opinion uttered in court or giving judgment, but not essential to the decision and therefore without binding authority."

At the Malacca High Court, Guan Eng was charged with sedition for stating "that he was dissatisfied with the laws of Malaysia because of the double standard which resulted in the rape case involving Rahim not being brought to court and the Attorney-General had stated that Rahim was not involved in a rape case involving the minor".

The Malacca High Court found that the prosecution had failed to establish that Guan Eng had uttered the words as charged and there was no cross-appeal by the Public Prosecutor against the finding by the judge.

In his judgement at the Malacca High Court, Justice Mohd Noor Abdullah said:
 

"Keputusan Peguam Negara menurut budibacaranya untuk mendakwa atau tidak mendakwa Tan Sri Rahim boleh dipersoalkan, dikritik atau dibahaskan. Tetapi ada batasnya. Kritikan itu hendaklah berpada, berasas, berpatutan dan tidak mencaci-hamun, mala fide atau berniat jahat terhadapnya atau keputusannya. Kes skendal sex Tan Sri Rahim menarik perhatian orang ramai dan Tertuduh serta partinya sudah tentu mengambil kesempatan mengutuk Kerajaan dan mencari laba politik.  Dalam konteks pertarungan pengaruh politik keghairahan Tertuduh bersuara tentang penahanan gadis itu yang menghasilkan laporan polis dibuat terhadap 17 orang lain tetapi tiada laporan polis dibuat terhadap Tan Sri Rahim, pendakwaan 8 orang yang hanya dihukum ikat jamin berkelakuan baik, pernyataan Peguam Negara bahkan ada syak yang kuat Tan Sri Rahim melakukan kesalahan itu serta keengganan Peguam Negara menafikan Tan Sri Rahim melakukan hubungan sex dengan gadis itu, tindakan Tertudah memberitahu orang ramai rasa tidak puashati dan marah sekalipun terhadap polis dan Peguam Negara, adalah berpatutan dan munasabah dalam ruanglingkup kebebasan bersuara dan meluahkan perasaan. Ucapan Tertudah kerana tidak puashati terhadap tindakah polis dan keputusan Peguam Negara yang seolah-olah undang-undang negara ini double standard adalah bukan menghasut terhadap pentadbiran keadilan."

Although this was not an issue at the Court of Appeal, and without listening to arguments from both parties, Justice Gopal Sri Ram has entered a "vigorous dissent" which though a mere obiter dictum, must be the concern of all Malaysians.

As Karpal and I said in Parliament during the debate on the Courts of Judicature (Amendment) Bill, Justice Gopal Sri Ram’s obiter dictum is a dangerous doctrine which will not only stifle public discussion or criticism of the exercise of the Attorney-General’s discretionary powers under Article 145(3)   "to institute, conduct or discontinue any proceedings for an offence" undermining the principles of accountability and transparency with reference to the office of Attorney-General, it will also  render many MPs, former Bar Council officials and NGOs open to criminal prosecution under the Sedition Act for they had previously criticised the Attorney-General for double-standards,  selective prosecutions or abuses of power.

I had pointedly raised the pornorgraphic videotape scandal of the then Deputy Speaker of Dewan Rakyat, D.P. Vijandran, which was first raised in Parliament by Karpal Singh in the Dewan Rakyat in December 1989, and which led to a major public controversy over the discretionary powers of the Attorney-General in handling the Vijandran pornographic videotape scandal, including the  destroying of material evidence, namely  11 pornographic videotapes and four envelopes containing some 2,000 pornographic photographs.

 At the time, the Attorney-General, Tan Sri Abu Taib was the subject of widespread and persistent public criticism, not only by DAP Members of Parliament, but also by the Bar Council, lawyers and NGOs for his abuse of powers in unlawfully ordering the destruction of material  evidence, with many raising issues as for instance:
 

• why Vijandran was not charged under section 24(1) of the Film (Censorship) Act 1952 for possessing obscene tapes;

• why Vijandran was not charged for lodging a false police report when he had initially reported that the safe stolen contained important MIC documents;

• why, if the burglary suspects could not be charged for theft, they were not charged for retaining stolen property, namely the safe, videotapes and photographs; and

• why, the Attorney-General was not charged for illegally destroying material evidence when under the Criminal Procedure Code, only the courts could order the destruction of evidence.

If the Sri Ram doctrine that any "public pillorying of the Attorney-General for exercising any of his powers under Article 145(1) of the Federal Constitution in one way rather than another would fall squarely within the purview of section 3(1)© of the Sedition Act 1948", then at least a dozen people, including Karpal Singh and myself, would have been liable to prosecution for sedition for criticising the Attorney-General for his mishandling of the D.P. Vijandran pornographic videotape scandal.

But this was not the view of the then Attorney-General, Tan Sri Abu Talib Othman who when asked about the widespread criticism of his handling of the case, said:  "They can criticise me, this is a free country."

I call on the Attorney-General, Tan Sri Mohtar Abdullah, to declare his stand on the Sri Ram obiter dictum that any public criticism of the the Attorney-General’s discretionary prosecution powers is an offence of sedition and not permissible by the laws of Malaysia - as to whether it is now the Attorney-General’s view that his discretionary prosecution powers enjoy immunity from public criticism or debate because of the Sedition Act.

 (14/5/98)