SEPTEMBER 13 ― Selangor Ruler Sultan Sharafuddin Idris Shah has been reported to have called upon the people to always respect the rule of law and the Judiciary’s independence.

Sultan Sharafuddin said the people have to put their faith fully in the nation’s judiciary system and not level any baseless allegations without knowing the facts and reasons related to the judgement of cases.

“Baseless allegations will invite negative perception towards the independence of the judiciary and will erode the people’s confidence and trust in the nation’s justice administration system,” added Sultan Sharafuddin.

The royal call came on the heel of Chief Justice Tun Tengku Maimun Tuan Mat’s reminder to the people that they should read the judgments of cases before criticising judges over the decisions.

Sultan Sharafuddin said the people have to put their faith fully in the nation’s judiciary system and not level any baseless allegations without knowing the facts and reasons related to the judgement of cases. — Reuters pic
Sultan Sharafuddin said the people have to put their faith fully in the nation’s judiciary system and not level any baseless allegations without knowing the facts and reasons related to the judgement of cases. — Reuters pic

Now, are judges immune to public criticism? If you haven’t read the CJ’s speech at the Taking of Oath of Office and Loyalty ceremony of High Court Judges on April 27, here’s what she said: “Judges are by no means immune to public criticism and accountability to those they serve. We are all subject to scrutiny. That is why we write judgments so that they can be read, analysed, discussed and debated. In fact, the whole system of appeal is based on judges’ awareness of their own fallibility.

“Hence, citizens including politicians are, to a certain extent, free to criticise the Judiciary. However, that does not mean that it is open to citizens including politicians to level unfounded and scurrilous attacks against the Judiciary or a particular judge to further their own ends.” At the ceremony, she reminded the judges that an important aspect of the judicial job was to provide the grounds of judgment for the cases that have been decided. According to the CJ, giving a reason or an argument for reaching the decision was just as important if not more important than making the decision itself.

That is why she implored the judges to write their judgments in a timely manner.

She knew all too well that justice, as a great English judge Lord Atkin said, is not a cloistered virtue; that justice must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.

However, statements that tarnish the good name of the judiciary as a whole, and undermine public confidence in the judiciary constitute the offence of scandalising the court. The offence is a form of contempt of court and punishable by the court.

Prosecutions for the offence are not uncommon in Malaysia, unlike in other commonwealth countries where the offence has been said to be obsolete. In the past the Federal Court has said that it is essential not to blindly follow the position in law in other jurisdictions, but to ascertain local conditions and apply the law in accordance with the needs and circumstances of the common law of Malaysia.

So, while the offence of scandalising the court has been abolished, for example, in England and Wales ― by virtue of Section 33 of the Crime and Courts Act 2013 ― it does not follow that we too ought to abolish the law. It is incumbent to assess our local circumstances and conditions. The prevailing conditions in other jurisdictions do not prevail here. Having regard to local conditions, criticisms which are considered as within the limit of reasonable courtesy elsewhere, are not necessarily so here. (See the case of Attorney-General & Ors v Arthur Lee Meng Kuang [1987])

Hence in 2019, for example, the Attorney-General (AG) initiated contempt proceedings against a senior lawyer for the contempt scandalising the court. The lawyer had allegedly scandalised the Federal Court by making various allegations regarding judicial conduct in the hearing, disposal and adjudication of a civil application before the apex court sometime in November 2018 in two articles published online. The thrust of the AG’s case was that all the statements or allegations made against the Federal Court exceeded and went far beyond what could reasonably be considered to be fair criticism.

The lawyer maintained that the statements were not made in relation to or against the Federal Court or the Judiciary. Even if it was found to be the case that he had made statements which appeared to scandalise the Judiciary, both he and his counsel maintained that they amounted to fair criticism.

A panel of five Federal Court judges unanimously found the lawyer to have scandalised the apex court. In its judgment the Court said: “The courts of justice are the bulwark of a nation. Alexander Hamilton famously recognised, in the doctrine of the separation of powers, that the legislature controls money, the executive controls force and the Judiciary controls nothing.

“It is in public confidence that the Judiciary depends, for the general acceptance of its judicial decisions, by both citizens and the government. The public conforms to the decisions of the Judiciary, because they respect the concept of judicial power and the judges who exercise such power (see Public Confidence in the Judiciary by Murray Gleeson, Judicial Conference of Australia, Launceston, 2002).” Therefore, the trust and confidence of the people in the judicial system to deliver impartial justice comprises the very foundation of the Judiciary.

The concept of contempt of court essentially is to protect public confidence in the Judiciary and the administration of justice. The rationale has been stated by Lord Morris in the leading English case of Attorney General v Times Newspapers Ltd [1973] which has been followed by Steve Shim CJ (Sabah and Sarawak) in the case of Zainur bin Zakaria v Public Prosecutor [2001].

According to Lord Morris: “In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference.

“When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk if the recognized courts of the land are so flouted that their authority wanes and is supplanted.”

After weighing the evidence before it, the Federal Court ruled that it was satisfied beyond reasonable doubt that the lawyer’s statements were calculated to erode public confidence in the administration of justice and the Judiciary. The apex court was not persuaded that articles were authored in the public interest. It was clear that the authority of the law as administered by the courts was flouted.

The offence is grave but a finding of guilt for scandalising the court is only upon weighing the evidence. The prosecution must still prove the offence. It is for the court to apply what has been referred to as the mens rea test under Malaysian common law to determine liability for the offence of scandalising the court.

The test is an objective one ― that is, whether the impugned statements were intentional. In conducting the objective inquiry, the court had to assess whether the impugned statements would undermine public confidence in the administration of justice based on its effect on the ordinary reasonable reader of average intelligence.

In parting, it is important to emphasise that the jurisdiction of the courts does not exist to protect the dignity of individual judges personally. It serves to protect the Judiciary as the third arm of government rather than individual judges.

Neither is such jurisdiction to be utilised to restrict honest criticism, which is based on rational grounds, to ascertain the manner in which the court performs its functions. Any such discussion should, in any event be conducted bona fide, for and in the public interest.

Subject the courts to scrutiny and criticism by all means. Just don’t scandalise the courts and breach the law.

* This is the personal opinion of the writer or organisation and does not necessarily represent the views of Malay Mail.