Bar Council president must clarify

Zainur Zakaria

Zainur Zakaria, NST

MALAYSIAN Bar president Christopher Leong has invited the group of lawyers who criticised him over his press statement relating to the Federal Court judgment in Datuk Seri Anwar Ibrahim’s trial, to voice their grouses at the Bar’s annual general meeting on March 14. As a member of the said group, I see no purpose in debating the matter at the AGM.

The president and his supporters will steadfastly argue in defence of the views expressed by him in his press statement, while those of us will argue in support of ours.

Neither side can claim the other to be wrong. The AGM is not the appropriate forum and is in no position to determine which of the views expressed by either party on the interpretation of the law, in particular sections 377A and 377B of the Penal Code is correct, even if we are to disregard the interpretation already placed on those sections by the Federal Court in its judgment.

I do not dispute the right to comment and criticise judgments of the court. The law allows comments and criticisms of judgments as long as they are made in good faith and within the limits of the law.

I am reminded of the decision of the Supreme Court in the case of Attorney-General v Arthur Lee Meng Kuang (1987). In this case, the application was for an order that the respondent (Arthur Lee Meng Kuang) be committed to prison for contempt of court. The respondent had acted for the plaintiffs in an application for declaratory orders and other relief against certain defendants.

The application had been allowed in the High Court. The defendants then appealed and the appeal was allowed. The respondent subsequently wrote letters to three Supreme Court judges involved in the appeal and to the solicitors of the appellants in the appeal.

The letters were highly derisive of the Supreme Court. The respondent not only criticised the judgment of the Supreme Court but alleged that the decision of the court was unjust and biased.

The Supreme Court, in finding the respondent guilty of contempt, held that:

“(1) in this country the need to protect the dignity and integrity of the Supreme Court and the High Court is recognised by Article 126 of the Federal Constitution and also by section 13 of the Courts of Judicature Act, 1964. A proper balance must, therefore, be struck between the right of speech and expression as provided for in Article 10 of the Federal Constitution and the need to protect the dignity and integrity of the superior courts in the interest of maintaining public confidence in the judiciary;

“(2) whether a criticism of a judgment is within the limits of reasonable courtesy and good faith must depend on the facts of each particular case. In determining the limit of reasonable courtesy the court should not, however, lose sight of local conditions;

“(3) the issue to be determined in this case is not whether criticisms of the court’s judgment are well founded but it is whether, having regard to all the circumstances of the case, the criticisms levelled by the respondent at the Supreme Court are within the limits of reasonable courtesy and good faith;

“(4) in this case on the evidence, the respondent has gone outside the two limits. The blatant accusations and insinuations made by the respondent are clearly intended to bring the court into disrepute and as such constitute the offence of scandalising the court.

“On the facts also the respondent was not within the limit of good faith, as here the personal interest of the respondent is overwhelming.”

In the case of Lim Guan Eng v Public prosecutor (1998), Justice Gopal Sri Ram, writing for the Court of Appeal, had this to say: “It is of vital importance that the public enjoys confidence in the administration of justice of which the courts form an integral part. Speeches or publications that bring the administration of justice into hatred or contempt produce a serious consequence.

“For, they have the effect of destroying public confidence in one of the pillars of the democratic system of government. It is in recognition of this harm that Parliament enacted section 3(1)(c) of the Sedition Act 1948.

“The seriousness with which the law treats allegations of partiality and bias on the part of those entrusted with the administration of justice is well illustrated by Re Sarbadhicary (1906) 95 LT 894 where an article published by a barrister that included the following passage: ‘So our readers can easily see that we have a wonderful Chief Justice who punishes an assailed and not an assailant with miraculous readiness and activity.

He punishes not the wrongdoers, but the wronged and thus he upholds justice’ was held by the Privy Council to be a contempt of court. “Sir Andrew Scoble, who delivered the advice of the Board observed (at p 895 of the report) that: ‘It is essential to the proper administration of justice that unwarranted attacks should not be made with impunity upon judges in their public capacity ….’

“We pause for a moment to observe the similarity in the language used by the advocate in the above-quoted case and that employed by the appellant in the present instance. “We are not for a moment saying that no criticism of a court is ever possible. It is not judicial policy to muzzle criticism of judges or their judgments, and we would, in this context merely echo what was said in 1998 at 55 Hock Hua Bank (Sabah) v Yong Liuk Thin & Ors (1995): ‘Criticism of a judge is part of the territory in which he operates. So long as that criticism is made bona fide, based on fact and in conformity with law, none, least of all a judge, should mind: for there is no acquisition of knowledge without criticism. Over-sensitivity to criticism may result in ignorance, or much worse, intellectual arrogance. To decide a point in fear of criticism is to abdicate duty. These are matters that form part of a well-recognised judicial philosophy and should require no reiteration.’

“It is only when criticism exceeds its legitimate bounds and becomes proscribed conduct that the courts will intervene. Whether particular conduct falls within the parameters of permissible criticism or has crossed the line to become criminal conduct depends upon the facts of each case.”

I do not dispute the right of Leong as the president of the Malaysian Bar , whether in consultation with other council members or on his own accord, in his wisdom, to express his views on the judgment of the Federal Court. However, what is most disturbing is the concluding paragraph of his statement, where he said: “These glaring anomalies fuel a perception that Anwar has been persecuted and not prosecuted.”

Leong’s criticism of the judgment of the Federal Court, where he argued that “the interpretation of Sections 377A, 377B of the Penal Code by the Federal Court was wrong and that Anwar should have been acquitted and such decision of the Federal Court came as a surprise to many”, based on the principles enunciated in the cases referred above, may be considered as within the confines of good faith and within the limits of the law and hence acceptable.

However, when read in conjunction with his concluding paragraph, it implies that the Federal Court in coming to its decision had persecuted Anwar.

Again, based on the decisions in the cases of Arthur Lee Meng Kuang and Lim Guan Eng, if such allegation is directed at the Federal Court, it is tantamount to attacking the integrity, dignity and independence of the Federal Court, the highest court in the land, implying that the court was unjust, biased and, when read in the context of other derisory comments floating freely in the electronic media, will give the impression to the public that the decision of the Federal Court was influenced by external powers or forces.

Statements issued by the president of the Malaysian Bar are given due consideration by the public, in the belief that lawyers are knowledgeable in the law. It is for this reason that we feel obligated to express our views on the matter.

Instead of calling for a debate on whether his opinion of the judgment of the Federal Court is legally correct or wrong, the matter can be easily resolved if Mr Leong is prepared to clarify or explain that the allegation of persecution is not directed at the Federal Court. Since his press statement is in the public domain, likewise, should Leong decide to make the clarification, a public statement should accordingly be issued “on behalf of the Malaysian Bar” to that effect.

The writer, a former Bar Council president, is among the group of lawyers who voiced their criticism over the press statement by the Malaysian Bar president recently