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." 
