ZAID MOCKS APANDI: IF YOUR SON RAPED A GIRL, YOU CAN'T SAY YOU HAVE 'ABSOLUTE DISCRETION' NOT TO CHARGE HIM

WHEN I was younger and still running a law firm, I used to get many invitations from student groups both here and overseas to speak to them about law, the practice of law and occasionally Malaysian politics (I was a lousy practitioner of politics, though).

This went on until my retirement five years ago, and I cherish the memory of those occasions because when we speak to the young, we develop a new kind of energy within us. We wax lyrical about hope and how things will be better.

It’s the audience that determines and characterises what you talk about, more so than the topics of law or politics under discussion. Now I hardly get any invitations, especially from public universities – but I understand their constraints.

Some young law students still call me once in a while to ask about little things about the law.

The most popular subject at the moment is “discretion”, maybe because there are lots of views being aired in public on the subject of the Attorney-General’s discretion.

Sub judice is a Latin term, meaning awaiting judicial determination. This term developed from Roman law that prohibits outside parties (such as newspapers) from commenting or discussing the facts of a trial in court with the intention of influencing jurors in determining the outcome of the trial.

In England, all trials were once conducted by jury (there are still jury trials there but less so now). Juries are made up of laypeople – peers of the accused – i.e. not experts in the law, but citizens called upon to deliberate and determine the guilt or otherwise of the accused with the judge’s guidance on matters of law.

Jurors are thought to be a fair sampling of the community in terms of social makeup, education and values, and thus they are the best people to determine questions of fact about the cases before them. Jurors, however, can be “influenced” much more easily than trained judges.

Malaysia no longer has jury trials, and trials by judges are a different concern. Judges are not influenced by comments made by external parties regarding the law or the facts of the case. They are not like laypeople who serve as jurors.

Today, some people use the expression sub judice to stop any discussion and to stifle free speech just because the matter has been brought to court. This is usually done as a matter of political expedience and it is an abuse of the legal rule of sub judice.

Sub judice has relevance only with regard to the law of contempt. When the court makes a certain ruling, the public and the newspapers must then obey. They are not at liberty to disregard the rulings, because that would amount to contempt of court.

For example: if the court orders that the name of an accused person be withheld (for whatever reason), then to disregard that order and to name that person would be contemptuous.

If a judge makes an order in the interest of justice that there should be no more public debate on a subject before the court (for example, in England more than 40 years ago the court barred newspapers from commenting on the thalidomide case) then that’s the proper use of sub judice.

Today, however, politicians or their lawyers – and not the court – seem to decide if a matter is sub judice, which is certainly not correct.

It’s important to remember that free speech is a valued commodity in a democracy, and that we must not use any excuse to stifle or limit its proper exercise by using an old concept such as sub judice without taking into account its origins and historical context.

Discretion is a contentious subject – about exercise of power, both in the olden days and in the present. Discretion is sometimes absolute and sometimes not.

In the time of King Henry VIII or King Charles II of England, discretion was conferred by the sovereign, and in those days the King’s discretion, or powers delegated to someone on his behalf, could never be challenged (one might try, but one might also lose one’s head).

Discretion today is statutory, which is to say that it is conferred under written law.

In Privy Council cases and even in Singapore today, the practice suggests that in modern jurisprudence the concept of “an absolute discretion” is an anomaly and all discretion must be properly exercised.

In Malaysia, “absolute” discretion is limited to a situation when the Attorney-General decides to charge someone. You cannot question the Attorney-General on why you have been charged under (say) Section 39(A) or 39(B) of the Penal Code, or why Accomplice A has been charged but not Accomplice B.

The interest of justice requires the Attorney-General to have that flexibility and discretion, when he decides to charge someone. However the Attorney-General has no discretion not to charge someone if the evidence is available.

For example, if there is forensic and medical evidence that the Attorney-General’s son has raped a neighbour’s daughter, the Attorney-General cannot say he has absolute discretion not to charge his son. This is common sense.

I always tell young law students that “you cannot be a good lawyer without common sense, but you might be rich without it”.

Common sense is not always easily acquired though; but law students must not try to lose it if they want to practise law and fight for justice.

Former de facto Law Minister Datuk Zaid Ibrahim ( carbofree@gmail.com) is now a legal consultant. The views expressed here are entirely his own. - ANN