(Petaling Jaya, Wednesday): The Attorney-General Tan Sri Mohtar Abdullah is propounding a very dangerous doctrime subversive to justice and the rule of law when he claims immunity from criticism for the office of Attorney-General and that any public criticism of the the Attorney-Generalís discretionary prosecution powers is an offence of sedition, criminal defamation and libel.
Referring to the allegation and police report by Parti Keadilan Nasional Youth chief Mohamad Ezam Mohd Nor of abuse of power by the Attorney General and a senior officer from the Attorney-Generalís Chambers, Mohtar quoted the Court of Appeal judgment by Justice Gopal Sri Ram in the Lim Guan Eng case which, among other thing, 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 Justice Gopal Sri Ramís 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-Generalís powers is mere obiter dictum, which is "a judgeís expression of opinion uttered in court or giving judgment, but not essential to the decision and therefore without binding authority."
As stated in the judgment of the Malacca High Court judge, Justice ohd Noor Abdullah, Guan Eng was charged at the Malacca High Court 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 (Thamby Cik) 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
made it very clear that the Attorney-General was not immune from public
criticism for the exercise of his discretionary powers of prosecution.
"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 entered a "vigorous dissent" which though a mere obiter dictum, must be the concern of all Malaysians.
DAP National Deputy Chairman and MP for Jelutong, Karpal Singh and I had subsequently said in Parliament during the debate on the Courts of Judicature (Amendment) Bill last year that Justice Gopal Sri Ramís obiter dictum is a dangerous doctrine which will not only stifle public discussion or criticism of the exercise of the Attorney-Generalís 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:
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)(c) 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 Mohtar Abdullah to learn from his predecessor and not to claim immunity from criticism as well as accountability for the discharge of his discretionary powers of prosecution.
At stake 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.
During the Federal Court appeal of Guan Engís case on August 24 and 25, 1998, Karpal Singh had asked the Federal Court to demolish the pernicious Sri Ram doctrine, and although Guan Eng is now in his ninth month of jail imprisonment, the Federal Court judgment rejecting his appeal against conviction and sentence has not been handed down.
Is the Federal Court prepared to strike down the Sri Ram obiter dictum that the Attorney-General is not immune from public criticism for the exercise of his prosecutorial discretional powers? Why is the Federal Court taking so long to deliver its judgment in the Lim Guan Eng case?
May be, the Attorney-General should list the Commonwealth countries where criticism of the Attorney-General for "selective prosecution" is per se an offence of sedition, criminal defamation as well as libel.