By Clara Chooi
The Malaysian Insider
Mar 14, 2012
KUALA LUMPUR, March 15 — The Dewan Rakyat Speaker’s reliance on the rule of sub judice to shut down discussion of the National Feedlot Centre (NFC) scandal in Parliament is flawed, a recent court decision shows.
The High Court, in a contempt suit filed by Syarikat Bekalan Air Selangor Sdn Bhd (SYABAS) against a Selangor government lawyer and PAS organ Harakah last year, had held that the courts must be cautious in applying the sub judice law and must also take into consideration constitutional provisions on the freedom of speech.
According to the judgment sighted by The Malaysian Insider today, Justice Ariff Yusof, when rejecting the application, had stressed that the common law rule on sub judice must be moulded “in the light of fundamental liberties provisions”.
“The court cannot believe the sensitivities of the average Malaysian can be so different so as to incline the court to adopt a completely different juristic approach which relegates freedom of expression below the sub judice rule,” he had said.
In the July 2011 case, SYABAS had cited lawyer Fahda Nur Ahmad Kamar and Harakah chief editor Ahmad Lutfi Othman for contempt over a statement published by Harakah on December 7, 2010 in an article “SAR bantu kempen bantah kenaikan tariff air (Religious schools help in campaign against a hike in tariff rate)”.
SYABAS had relied on the sub judice rule when attempting to prove contempt, saying the published statement amounted to a direct attack on its credibility and could interfere with the course of justice in its ongoing suit filed in 2010.
But Ariff had explained that sub judice or contempt of court would be applicable only when discussions outside of court attack the integrity of a judge or cast aspersion on the administration of justice.
He added that it was also unlikely that a professional judge hearing a case would be influenced or bothered other criticisms or debate.
Ariff had also pointed out to SYABAS that, prior to the suit it filed in 2010, the matter in question — protests against water tariffs — was already a part of a “wider public discourse”, which was actively carried in the electronic and print media. “Indeed, the whole issue of privatisation of water resources had been discussed at length by members of the public well before the filing of the SYABAS suit in 2010.
“The practical reality and law have somehow to find an accommodation based on considered principles,” the judge had held.
The decision of this court was upheld by the Court of Appeal last November and, as it stands, is the current judicial position on sub judice.
Similarities can be drawn between the SYABAS matter and the ongoing NFC scandal.
For one, the controversy has been widely discussed in the media for over four months now, before it entered the courts on Monday when National Feedlot Corporation chairman Datuk Seri Mohamad Salleh Ismail was charged with criminal breach of trust (CBT).
Despite this, Dewan Rakyat Speaker Tan Sri Pandikar Amin Mulia disallowed an emergency motion by PKR’s Zuraida Kamaruddin yesterday to discuss the RM250 million scandal in the House, citing the ongoing case.
“At first I allowed it to be read but now the matter has been brought to court. So I cannot do as I please.
“It cannot be discussed as it has been brought to the judiciary,” Pandikar had explained.
But on the face of it, Zuraida’s motion and the ensuing debate would not have fallen foul of the sub judice law.
#1 by yhsiew on Thursday, 15 March 2012 - 7:07 pm
The Dewan Rakyat Speaker should not bias towards BN as it is unfair to the opposition.
#2 by tak tahan on Thursday, 15 March 2012 - 7:25 pm
What to do when the ‘Umno’ Dewan Rakyat Speaker has lost his integrity,dignity,reputation and balls to carry out his duty independently.Change the incumbent government in order to change all the useless kangaroo judges!
#3 by Jeffrey on Thursday, 15 March 2012 - 8:24 pm
The difference between the Syabas case (a civil case) and NFC’s is that the latter’s case is a criminal one in which accused’s liberty is at stake. Therefore there is more concern whether outside’s opinions will influence the court to prejudge based on them instead of evidence. Which is the whole purpose of the “sub judice” rule’ – to treat as contempt of court any publication of matters under consideration of court that may influence its proceedings and outcome. That said, the sub judice rule has greater relevance where lay judges juror or witness were influenced. This has no application here because jury system has mostly been abolished here. The judges are legally trained and ought to be less susceptible to be irrelevantly influenced by outside opinions. (If a judge were presumed not so easily influenced then he could guide/direct/check the lay witness against being so likewise influenced). Besides there had already been lengthy public discussion on the NFC’s issue way before the charge /court proceedings. There is no way such an enforcement of the sub judice rule now can dispel prejudice if any influenced by public discussions before and preceding the charging of NFC’s chairman. If for these reasons discussions by ordinary Joe public ought not to be held for contempt for subjudice, then more so it should not be for the august House of Parliament that enjoys traditional immunity & parliamentary privilege in respect to freedom of speech within it.