Will Hadi Awang be charged with contempt of court?

“If Malaysiakini was guilty of contempt, then Hadi’s position is no better, if not worse. There cannot be duality of approach when it comes to an attack upon an important pillar of government.”

A. Kathirasen, Free Malaysia Today

It will be interesting to see if the authorities heed the call to institute committal proceedings against PAS president Abdul Hadi Awang for his alleged “attack” against a bench of Federal Court judges.

The call by no less a figure than Gopal Sri Ram – one of the best known legal eagles in the country today – certainly needs an answer.

In referring to a Facebook statement by Hadi regarding the Federal Court’s ruling that a Selangor shariah enactment which criminalises unnatural sex was unconstitutional, Sri Ram said: “In my respectful view, his statement is highly contemptuous both of the court and the Federal Constitution. His attack shows his complete disregard for the rule of law.”

These are strong words and certainly the Attorney-General’s Chambers and the judiciary cannot disregard them.

Hadi allegedly said things that might be construed as improper, including making reference to “crocodiles” and saying that “several members of the judiciary” had lost their religious sensitivities.

Hadi, the Marang MP, is the government’s special envoy to the Middle East.

Chief Justice Tengku Maimum Tuan Mat, in reading the Federal Court ruling, had said that Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 was unconstitutional because the Selangor state legislature was incompetent to pass that law as such a law was already on the Federal List.

Noting that the primary power to enact criminal laws lay with Parliament, she said while states could enact laws on offences against the precepts of Islam for Muslims, they could not do so when the offence was already on the Federal List.

The chief justice said this in allowing an application by a Muslim seeking a declaration that the Selangor state legislature was incompetent to pass a shariah law that made it an offence to engage in unnatural sex.

Acknowledging that sodomy, with which the man had been charged, was against the precepts of Islam, she said federal versions of Section 28 existed as buggery under Section 377 and as carnal intercourse against the order of nature under Section 377A of the Penal Code.

Sri Ram had called on “those who had an interest in the matter” to urgently take committal proceedings against Hadi.

He added: “If Malaysiakini was guilty of contempt, then Hadi’s position is no better, if not worse. There cannot be duality of approach when it comes to an attack upon an important pillar of government.”

Mkini Dotcom Sdn Bhd, the company which runs Malaysiakini, was fined RM500,000 by the Federal Court after it was found guilty on Feb 19 of “scandalising” the judiciary in publishing reader’s comments last year. The court chose to impose a RM500,000 fine although senior federal counsel Suzana Atan had only suggested RM200,000.

Court of Appeal president Rohana Yusof, who led a majority of six judges in finding Malaysiakini guilty, said the news portal could not claim that its filter system had failed to remove offensive comments when it deliberately chose to filter only foul language and that it could not shift the entire blame onto its third party online subscribers while exonerating itself of all liabilities.

She said the five readers’ comments amounted to an unwarranted attack which had exposed the judiciary to embarrassment, public scandal and contempt to the point of belittling the judiciary. The high fine was imposed in the public interest and to serve as a lesson for others so that they would not commit contempt of court.

Dissenting judge Nallini Pathmanathan said, among other things, that the AG had failed to “establish beyond reasonable doubt that the respondents possessed the requisite knowledge of the existence of the third-party comments and deliberately intended to publish those comments”.

The comments by readers appeared in a report dated June 9, 2020, titled “CJ orders all courts to be fully operational from July 1.”

AG Idrus Azizan Harun is in a tough spot. If he doesn’t initiate proceedings of contempt against Hadi, he may be accused of double standards. So far, he has not made any statement regarding this.

Apart from the AG, the courts and any aggrieved party also have locus standi to initiate such proceedings.

In the Federal Court’s ruling against Malaysiakini, Rohana said the allegations by the readers carried by Malaysiakini had not only “besmirched” the judiciary’s good name, they had also “subverted the course of administration of justice, undermined public confidence, and offended the dignity, integrity and impartiality of the judiciary”.

It remains to be seen if Hadi’s statement has done the same. And only the court can say so.