Two former judges disagree with 'sub judice' argument

Two former Court of Appeal judges disagree with the argument of sub judice put forward by the government in not having Prime Minister Najib Abdul Razak answer questions in Parliament on the RM2.6 billion put into his personal bank accounts by a Middle East donor.

Former Court of Appeal judge Mohamad Ariff Md Yusof said today the matter of sub judice does not arise at all, since the issue is not before any court proceeding.

“An investigation (into an ongoing matter) is not a judicial proceeding. The rule on sub judice exists to prevent trial by media or by other external means so that judges and juries will not be influenced by external factors in coming to a judgment or decision,” Mohamad Ariff said.

“When an issue has already entered into the public domain and there is keen public interest in getting to the truth of the matter, there is no issue of sub judice if no judicial proceeding on the matter is going on,” he added.

The real issue in this case, Mohamad Ariff (photo) said, is that of freedom and access to information on a matter of public interest.

“An answer in Parliament cannot offend any perceived sub judice rule,” he told Malaysiakini.

Mohamad Ariff had as a High Court judge dismissed a contempt proceeding brought by Syarikat Bekalan Air Selangor (Syabas) against lawyer Fahda Nur Ahmad Kamar on her statement at a dialogue on the water industry takeover, while acting for the Selangor Pakatan Rakyat government, as it was reported in PAS journalHarakah.

He ruled that the court had to be cautious in applying contemptuous proceeding to curtail freedom of speech and in quoting Lord Denning, he said "a fair comment does not sub judice a fair trial".

Minister in the Prime Minister's Department Azalina Othman Said announced that Deputy Prime Minister Ahmad Zahid Hamidi, who stood in for Najib in answering the RM2.6 billion donation in Parliament, cited sub judice as the reason Najib did not come personally to answer on the matter.

Azalina, a qualified lawyer, said Najib was advised by attorney-general Mohamed Apandi Ali from going to Parliament to answer on matter as it would be sub judice to do so.

Sub judice is a latin term meaning "under judgment", which means that a particular case or matter is under trial or being considered by a judge or court.

Najib has a duty to explain

Another former Court of Appeal judge, Mohd Hishamudin Mohd Yunus, told Malaysiakini that he disagreeswith Apandi's views.

“With respect to the learned Attorney-General, I do not think that it is sub judice for the Right Honourable Prime Minister to explain in Parliament about the RM2.6 billion in his personal accounts.

“I associate myself with the views as expressed by former Federal Court judge Gopal Sri Ram and Ambiga Sreenevasan on why any explanation given by the PM in Parliament on the RM2.6 billion would not be sub judice.

“On the contrary, the PM has a duty to explain to Parliament and to the nation on the RM2.6 billion,” Hishamudin (photo) said.

Ambiga has expressed that it is not sub judice for Najib to answer on the RM2.6 billion in Parliament.

Gopal was also quoted by The Malaysian Insider as saying that the rule of sub judice rule can only be used in relation to court proceedings, as it is connected to the law of contempt.

However, Gopal said, historically the rule was introduced by the courts in England to prevent juries from being influenced by extraneous factors, adding that juries need not give a reason for their verdict.

“In Malaysia, the sub judice rule loses its weight because judges give reasons that can be tested on appeal,” he said. -Mkini