Judges, judgments open to criticism, say retired judge, lawyers

Retired Federal Court judge Datuk Seri Gopal Sri Ram says court judgments and judges are open to criticism but it must be done in a constructive manner. – The Malaysian Insider file pic, November 27, 2015.

Court judgments and judges are open to criticism but it must be done in a constructive manner, a retired judge and lawyers say, adding that the Sedition Act has being abused to prosecute those who attacked the judiciary.

They said it was common for lawyers and academics to be critical of judicial pronouncements, but warned that adverse comments should be couched in temperate language.

They added that those who attacked the integrity of judges must substantiate their allegations with solid prove.

They said judges or the attorney-general can initiate contempt proceedings against those who are disrespectful to the court. This, they said, would give the accused a “level playing field” compared with facing a sedition charge.

Retired Federal Court judge Datuk Seri Gopal Sri Ram said proper criticism of a judgment or a judge was not wrong, pointing out judgments were made available to the litigants, practitioners, law students, academics and the public, so that they may criticise them.  

“Criticism is the path to learning. It is only through criticism that a judge may become aware where he may have gone wrong so that he may correct himself in a later case,” he said.

He said a judge who was sensitive to criticism was not fit for the job because sensitivity to criticism was the path to ignorance or even intellectual arrogance.

Sri Ram said academics also criticised judgments and they were entitled to do that because they may be able to discover where a judge went wrong on a point of law.

It is through articles written by academics that judges discover different points of view, he said.

Sri Ram said there were cases in which the House of Lords (which used to be the Apex Court for the United Kingdom) had reversed its earlier decision in a case because of the criticism from an academic.

Sri Ram was commenting on recent cases in Malaysia where two activists were charged separately with sedition for criticising judgments.

Activist Lawrence Jayaraj Edwin John was charged with sedition when he wrote an article, criticising the Federal Court's decision to convict Datuk Seri Anwar Ibrahim for sodomy in February.

Parti Sosialis Malaysia leader S. Arutchelvan was also charged with sedition on Monday after he allegedly criticised the judiciary on the same verdict, in a Facebook post.

Arutchelvan told reporters he found the charge against him odd because Parliament had approved amendments to the Sedition Act which allowed for the judiciary to be subjected to criticism.

Lawyer Fahri Azzat said criticism of judgments came in many forms like pointing out in the memorandum of appeal where the judge had gone wrong, during submissions in court.

However, he said those who cast aspersions on the integrity of individual judges must back up their claims with solid evidence.

He said a judgment was for the benefit of the public and everyone had the right to express their opinions but with decorum.

Fahri said it was quite inaccurate for anyone to claim that the bench could not respond and correct public criticisms.

“The chief justice can communicate during the opening of the legal calendar year. He can give interviews to defend his judges and the institution,” he said.

Senior lawyer Datuk Bastian Pius Vendargon said the Sedition Act could be abused against those who criticised the judiciary for merely expressing an opinion.

The civil lawyer said it would be better for bench or the attorney-general to initiate contempt proceedings rather than use the much criticised law that stifled dissent.

“In such proceedings, the prosecution has a higher burden to prove their case against those facing a contempt charge.

“For sedition, truth and justification are no defence and it now appears difficult for accused to secure an acquittal,” he said.

- TMI