"New" Malaysia, "Old" Judiciary

From Malaysiakini:

Yoursay: A whiff of old Malaysia in contempt of court sentence

YOURSAY | ‘Even if the conviction (of Arun Kasi) was justified, the sentence is manifestly excessive.’

Lawyer Arun Kasi gets 30 days' jail for contempt

Human rights advocate and legal director of Fortify Rights Eric Paulsen said the sentencing was unnecessary and criticism against the judicial body should not be made an offence.

“Justice is not a cloistered virtue and everyone must be allowed to be critical, rightly, wrongly, even being rude or outspoken regarding the judiciary.

“Respect for the judiciary cannot be enhanced through contempt proceedings, ie. the courts themselves assessing whether allegations of impropriety against the judiciary are justified.

“What is at stake is freedom of speech. It is our right to speak out on matters of public interest and judges and their judgments should not be shielded from criticisms,” he said in a tweet.

Lawyer Shanmuga K. said Arun’s sentencing was a first of such a case under the Pakatan Harapan government.

He pointed out that even under the previous Barisan Nasional government, such a ruling did not take place.

“Has a lawyer in ‘Malaysia lama’ ever been sent to prison for the archaic offence of ‘scandalising the judiciary’ because of a critique of a court judgment?

“‘Malaysia baru’ keeps letting me down,” he said in a tweet. 

Abasir: "Justice Ramly Ali, who led a five-member panel, held that (lawyer) Arun Kasi's contemptuous statements against the Federal Court were serious and tarnished the good name of the judiciary as a whole, undermined the public confidence in the judiciary, and ridiculed, scandalised and offended the dignity, integrity and impartiality of the court."

Then the two guilty ones who immediately come to mind are Prime Minister Dr Mahathir Mohamad and former attorney-general Mohamed Apandi Ali. It is strange that Attorney-General Tommy Thomas is unable to wrap his head around that.

But seriously, is this Pakatan Harapan's version of speedy justice to compensate for shamelessly ignoring the injustice suffered by the spouses and children of the forcibly disappeared men and women by the state?

In any case, how can anyone, let alone a lawyer speaking up against alleged corruption, further tarnish the already soiled reputation of Malaysia's judiciary?

Latheefa Koya, the 'Lawyers for Liberty (LFL)' executive director pointed out that the same issue which landed Arun in trouble was raised by Court of Appeal Judge Hamid Sultan Abu Backer in his affidavit.

She noted the affidavit prompted the government to announce that a Royal Commission of Inquiry (RCI) would be formed to investigate the explosive allegations of judicial misconduct.

“Why go after Arun then? Easy target?” she asked in a Twitter posting this evening.

Hamid had filed his affidavit on Feb 14 in support of lawyer Sangeet Kaur Deo's application to declare that the chief justice had failed to defend the integrity and credibility of the judiciary in connection with two alleged incidents of judicial interference.

The police are also investigating the contents of the affidavit which, among others, claimed that certain members of the judiciary have been aiding private parties to defraud the government.  

Gerard Lourdesamy: Even if the conviction was justified, the sentence is manifestly excessive.

The purpose of contempt proceedings is not to vindicate the reputation of the Federal Court judges who presided over the leave application in the case of Leap Modulation Sdn Bhd vs PCP Construction Sdn Bhd, but rather, to protect the integrity of the judicial system.

Scandalising the court is an outdated and obtuse species of contempt that has been abolished in many Commonwealth countries because it stifles fair criticism and public discussion of decisions of the courts.

Whether Arun crossed the line is debatable, given that he was speaking as an experienced lawyer with knowledge of the facts of the case in question. Where does fair comment end and contempt begin?

Whatever the case, the sentence is unwarranted even if the mitigating circumstances were limited. A fine would have been sufficient, rather than a custodial sentence.

The government should consider a royal commission of inquiry into the affairs of the arbitration centre that were the subject matter of the contempt proceedings.

It is also time that a Contempt of Court Act be enacted to reform and clarify the law of contempt.

How does one keep the streams of justice pure when the public perception of the judiciary in general, and of certain judges in particular, is largely negative?

Former Law Minister Datuk Zaid Ibrahim said the Malaysian Bar should organise a march to the Palace of Justice in a show of solidarity.“Don’t let Arun suffer alone. This is the beginning of New Malaysia that we must oppose,” he tweeted.

Anonymous 1058841433936091: Indeed, if punishing Arun was meant to improve the image of the judiciary, then I think this exercise was a waste of time.

Quigonbond: I still don’t understand this case, mainly because Court of Appeal judge Hamid Sultan Abu Backer appears to be credible enough because the government is considering an RCI over his allegations of judicial tampering.

So it is puzzling how someone speaking in defence of his obiter from being expunged is held in contempt of court.

The AG should educate the public. Maybe the difference lies between ‘concerned that a few bad apples are trying to tamper’ versus ‘the entire judiciary comprises of bad apples’, in which case I can see the distinction. But was that what Arun Kasi has alleged?

Ravinder: As a layperson, it is my opinion that expunging a dissenting judgment is a very serious matter. It amounts to the judges who expunged the said judgment wanting to keep something smelly under the carpet.

If the dissenting judgment had no merits, just let it stand and let the dissenting judge be ridiculed. But removing it from the record (expunging it), the objective seems to be to prevent that dissenting judgment being used in future court cases since dissenting judgments have also been used as 'authority'. It is akin to destruction of evidence.

'March to Palace of Justice' - lawyers see red over Arun's prison sentence

Lawyers for Liberty advisor N. Surendran also tweeted on the matter and said a fine would have been sufficient in Arun’s case. “Imprisonment for contempt should be imposed only in the most serious cases. More so, since there is no right of appeal from the sentence,” he said.

Palmyra: This is not a decision of the Mahathir government (the executive branch), if you are pointing a finger at the new government.

It is a decision handed down by the judiciary. It is independent of the executive branch. I don’t think the prime minister has any influence on the decision of the highest court.

You want separation of powers, yet when the court decides on something, you quickly blame the executive branch.

The lawyer can go on to appeal against the decision or call for a judicial review, but do not blame the prime minister for the harsh decision of the court. My two cents’ worth of opinion.

Ian 2003: Arun's statements do not undermine public confidence in the judiciary, but the unjust judgment by the judges do result in the public losing faith and confidence in the judiciary.

Anonymous 1058841433936091: I just called the Bar Council to see if they are organising a collection of monies for Arun.

More than that, I am just so, so, so saddened by all of this. This is truly the most ridiculous thing that has happened.

Fairplayer: There is something grossly wrong with New Malaysia. Is gross injustice rearing its ugly head? So no one is allowed to criticise the judiciary?

Wong Fei Hoong: Contempt of court is a serious offence and appropriate punishment should be made.

I don't understand why Lawyers for Liberty is feeling so disturbed. You have the freedom to march but it won't change the punishment against Arun.

Chuen Tick: From the comments of the lawyers above, it is obvious Arun's jail sentence is excessive.

The attorney-general let the genie out of the bottle when he brought the contempt charges against Arun. He has no control over the wrath of those involved, who wanted a pound of Arun's flesh.

In any case, this is a good diversion - the initial criticisms have disappeared from public view and Arun is the 'criminal'.

Truth Really Hurts: Does this judgment effectively mean that in future when dissenting judgments are not favourable or are inconvenient, they can be expunged so that majority judgment becomes unanimous judgment?