27 April 2009

Censoring with sub judice (The Nut Graph)



By Zedeck Siew

WHEN the police banned any mention of Altantuya Shaariibuu or the Barisan Nasional takeover of Perak from by-election ceramah recently, sub judice was used to justify the order.

"Both cases are still in court. As such, talking about them or bringing them up in crowds can be sub judice or contempt of court," declared then Home Minister Datuk Seri Syed Hamid Albar.

Indeed, sub judice is often cited when the Malaysian authorities issue a gag order even when a subject matter is of public interest. What is sub judice and are the authorities justified in wielding it to censor public discussion?



Preventing prejudgment

Sub judice is a Latin term. It is legalese that literally means "under judicial consideration".

"The sub judice rule governs what public statements can be made about any ongoing legal proceedings," Malaysian Bar Council secretary George Varughese explains in an e-mail interview.

Underscoring the rule, he says, is the concept of prejudging. "If discussion might place improper pressure on the litigants or on witnesses, then the courts can intervene and hold such discussions as sub judice, and thus in contempt of court," he says.

However, the Malaysian government's interpretation is that once the hearing of a case begins in court, sub judice puts a halt to any public or media discussion of it.

Varughese says this is a misconception. "The sub judice rule does not prohibit fair and accurate reporting of the factual contents of any ongoing proceedings," he says. This means that if certain facts or evidence have already been presented in court, discussion of such facts is fair and legal.


Varughese (Source: malaysianbar.org
.my)

"If it is a matter of public interest, it can be discussed at large, without the fear of being in contempt of court," Varughese adds. "Criticisms can be made and repeated. Fair comment does not prejudice a fair trial."

Jury trials

Bar Council president Ragunath Kesavan describes the current concept of sub judice in the Malaysian context as "subverting a judicial process".

He explains that it is "a creature of the past", a leftover from an era when the outcome of Malaysian court cases was decided by a jury.

"It was relevant in jury trials. You don't want a jury to be swayed by external pressure or undue influence," Ragunath says.

He uses a hypothetical snatch-theft case as an example. Noting that there is huge public outrage against snatch thieves, it would be conceivable that a sizeable group of people start promoting the death penalty for such offenders, he says.

"If we had jury trials and there was open discussion of [such a] case, that could jeopardise the conduct of a fair trial and that could be sub judice," Ragunath explains. Such public pressure could influence the impartiality of jurors, who comprise the Malaysian public.

But Ragunath points out, this has become irrelevant in Malaysia today because the jury system was completely abolished in Malaysian courts by 1995. Judgments are now made by judges, who are experts.

"Judges are trained in the law. They have been sitting on the bench for years," Ragunath says. "It would be unlikely for them to be swayed by public discussion."

Former Bar Council president Yeo Yang Poh concurs. "Unlike judges who, by their training, are supposed to be able to decide cases without being unduly influenced by public opinion, jurors are not similarly equipped to rise above public opinion."

"Thus, the sub judice rule has no place in present day Malaysia, where there is no longer any jury trial," Yeo says.


The Jury by British artist John Morgan, 1861 (Public domain; source: Wikimedia commons)

Justifying censorship

Criminal and information technology lawyer Richard Wee believes that, to a certain extent, there is a legitimate point to Syed Hamid's statement and the police's actions.

"Freedom of speech comes with responsibilities. We cannot openly declare that he killed her, with 100% certainty," Wee says, referring to new prime minister Datuk Seri Najib Razak's connection to the Altantuya murder case.

However, Wee maintains that the facts of the case — including Sirul Azhar Umar's testimony, and the fact that both police officers who have been foundguilty of the Mongolian model's murder served on Najib's security detail — should be allowed.

"The police and Syed Hamid are taking things to an illogical level," Wee opines. "They are using sub judice as censorship."

He also points out that this ban seems lopsided, as it does not extend to discussion of other court cases. "If it is sub judice, what about [Opposition Leader Datuk Seri Anwar Ibrahim]'s sodomy case? Utusan Malaysia discusses the case as if Anwar's guilt were a matter of fact."

Balancing act

Ragunath says an important question is how to balance the principle of sub judice with Malaysian's right to freedom of expression. "In the democracy we are today, there should be some level of openness."

He points out that legal remedies are already available to a citizen facing false public allegations: civil and criminal defamation.

Having the right to public discussion should also not usurp the role of the courts, says Varughese; "for example, by discussing how the issues should be decided by the courts."

Ragunath concurs: "What ought not to happen is statements such as 'the judge should do this, or the judge should do that'."


The Palace of Justice in Putrajaya, which houses the Court of Appeal and Federal Court
(Public domain; source: Wikimedia commons)

However, he maintains that everyone should be held responsible for his or her decision. "We have moved on. Therefore, sub judice should not be used to dampen public debate. Even judges should be accountable to the people for the decisions they make."

Of course, the impartiality of Malaysian judges has been a popular question since the 1988 judicial crisis. More recently, one need only look to the VK Lingamvideotape controversy. Regardless, a judge invoking the principle of sub judicewould be highly unacceptable, as it means he or she is liable to be swayed by public, inexpert opinion.

As the Malaysian legal system is based on the UK's common law principles, Yeo cites the landmark Reynolds v. Times Newspapers Limited case as proof of this notion.

"The House of Lords judgment in fact states that a judge who would succumb to public opinion, when the facts of — and the law applicable to — a particular case are before him [or her], would be unfit for [the] job."

04 April 2009

Appointment of the Prime Minister in Malaysia



For the 6th time, Malaysia sees the appointment of a new Prime Minister.

The power to appoint a Prime Minister, lies with the Yang Di-Pertuan Agung. Under Article 43(2) sub (1) of the Federal Constitution, the King shall appoint a Prime Minister to preside over the Cabinet, chosen from among the member of Dewan Rakyat, if, in the King's judgment, this particular person commands the confidence of the majority of the Dewan Rakyat.

Under Article 42 (4) of the Federal Constitution, the Prime Minister would have to resign, if the Prime Minister ceases to command that confidence from the majority.

Theoretically, the King may not want to appoint Dato Seri Najib as Prime Minister if His Highness chose so, as Article 40 (2) of the Federal Constitution, gives the King the discretion to (among other discretions His Highness has, as stated in the Federal Constitution) :-
a. appoint a Prime Minister;
b. withhold consent to the request to dissolve Parliament

However in Constitutional Law, the King is discouraged to exercise those discretions, as the Convention of the Constitution would expect the King to follow the voice of the people, and if the majority of the people support a particular person, then that person may be appointed Prime Minister.

What is a convention, you may ask? 'Convention' in Constitutional Law is not the convention you attend at convention centres or hotels. The phrase 'Convention' in Constitutional Law relates to certain conducts, expected of certain person in certain position.

For example, the Convention of Ministerial Responsibility, that a Minister resigns if he/she has conducted him/her self to a point; deemed unbecoming of a Minister. If the Minister is actingout of line, the Constitutional Convention expects him or her to resign. This would protect the sanctity of the Parliament that only good and upright people remain in Government. That is the purppose of that Convention.

Or the Convention that a King would usually consent to a Parliamentary Bill, which passed through the Dewan Rakyat and Dewan Negara. Why, you may ask? Well the King should not withhold the consent for a Bill, passed by democratically elected people, as the King is not elected.

There are many other interesting Conventions in Constitutional Law. Perhaps we may blog about other Conventions in the future.

02 April 2009

Death in Police Custody





The recent death of Kugan in Police Custody was unfortunate. While we can understand that Police may sometimes need to be tough when interrogating an accused, but to cause the death of one in custody is just not appropriate. We noted that the AG's office have demanded investigation and this is a positive way forward for a transparent investigation.

In the Criminal Procedure Code, there is a specific provision, Section 334 which reads:-

When any person dies while in the custody of the police or in a psychiatric hospital or prison, the officer who had the custody of that person or was in charge of that psychiatric hospital or prison, as the case may be, shall immediately give intimation of such death to the nearest Magistrate, and the Magistrate or some other Magistrate shall, in the case of a death in the custody of the police, and in other cases may, if he thinks expedient, hold an inquiry into the cause of death.

In addition, under the Police Act, there is an 'Inspector-General Standing Orders' which will give a guide to the Police Officers on how to deal with death in Custody.

One must be aware that the moment a person passes away, the Police must be informed; wherein the Police would visit the Body to confirm if there is any 'foul play'. The Police would then issue a Death Certificate, confirming the person's demise.

Under Section 18 of the Births & Deaths Registration Act 1957, all Deaths must be confirmed and a Certificate will be produced.

When one dies in Police Custody, the CPC is clear - that it is the Magistrate who must be informed of the death; and that Magistrate shall then confirm the nature of the death. Needless to say a post mortem is normally carried out just before body is released to the family members of the deceased.