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.