Where is justice? Ramakrishnan wonders why Najib’s lawyer, Shafee, was free to criticise a judge?

 By P Ramakrishnan

Ramakrishnan would like to know why the judiciary did not act with the same degree of indignation when Shafee criticised the judge and his judgement. Doesn’t Shafee’s criticisms constitute contempt of court? And yet a few months earlier, Malaysiakini was slapped with a hefty fine for readers comments, which the newspaper had removed. They were punished by the judiciary anyway. Why the two different types of punishment?

If a lay person is puzzled and confused with the judiciary, that is perfectly understandable. Many could not understand how Malaysiakini could be convicted of contempt of court when it did not disparage the judiciary. After all, the judiciary has not managed to restore public confidence.

In this contempt of court case, the judiciary landed on Malaysiakini like a ton of bricks in finding Malaysiakini guilty. It was so outraged seemingly that it found it necessary to ignore the already hefty RM200,000 fine recommended by the attorney general, and instead imposed a draconian punishment – a fine which was 150% more as a drastic punishment – a mind-boggling half-a-million ringgit!

To many, the judiciary was apparently so upset; it was so angry it was disparaged, it could not contain itself. As a result, it was driven to inflict a punishment that was so severe, to drive home the fact that the judiciary would not brook any nonsense. A half-a-million-ringgit fine was imposed on Malaysiakini, which did not in any way knowingly disparage the judiciary.

Two lay persons were carried away and criticised the judiciary unsparingly when they posted their comments on Malaysiakini. But Malaysiakini, to its credit, removed the offending remarks as soon as it became aware of it. The fact that Malaysiakini had acted responsibly and immediately did not cut ice with the judiciary.

Now compare this with what had happened within the precincts of the court in the presence of three judges in the Court of Appeal.

Muhammad Shafee Abdullah, the senior counsel for Najib Razak concerning the RM42m corruption case, referred to the High Court Judge, Mohd Nazlan Mohd Ghazali who convicted Najib, in caustic terms. He called him incompetent and labelled his judgment as poisoned. He disparaged him outrageously.

Here are some examples of his open criticism in court:

1. If he had exercised his judicial mind, he would have immediately discarded PW42 as unreliable.

2. The lawyer claimed that the insertion of the additional reasons was illegal and showed that the judge was biased.

3. “The judge is hopelessly incompetent resulting in the blunder,” Shafee claimed, contending that Najib was denied a fair trial.

4. Nazlan had made “error after error” in the SRC case.

5. the learned judge was either hopelessly incompetent in this case,

6. has the judge poisoned his ground of judgment?

7. a “misdirection” made by the High Court judge in his ruling during the close of the prosecution stage in Najib’s trial deprived his client of a proper defence for an acquittal.

8. Nazlan’s ‘illegal meddling’ demonstrated a clear element of bias in the learned judge’s conduct and whether Najib had indeed received a fair trial.

9. “Could we say he (Nazlan) was hopelessly incompetent? That’s why these kinds of blunder happen.

10. has the judge ‘poisoned’ his judgment?”

11. He said consequent to Nazlan’s “incompetency” was a breach of natural justice

12. had “bent over backwards” to find the former prime minister guilty

13. “The judge was bending over backwards… he took on the role of a second prosecutor to save the prosecution’s case.

14. Kuala Lumpur High Court Judge Mohd Nazlan Mohd Ghazali had acted like a second prosecutor in the trial which saw his client ending up being found guilty of abuse of power, criminal breach of trust and money laundering.

15. Nazlan had also relied on hearsay evidence of witnesses who were not called to testify in the trial.

16. complex criminal cases were heard by “experienced judges”.

17. an inexperienced judge when it came to criminal matters.

18. He also questioned Nazlan’s competency in presiding over what he described as the biggest case of the century.

19. Najib said Kuala Lumpur High Court Judge Mohd Nazlan Mohd Ghazali was a greenhorn who had never presided over any criminal case and was therefore utterly inexperienced to preside over his trial, describing it as the “case of the century”.

20. “At the last minute, they appointed a judge who had no experience in criminal trial,”

21. case was heard by a judge that had no experience in criminal trials but was assigned to preside over a “case of the century”.

All the above remarks and comments have thoroughly scandalised the judge.

If you compare the incident involving Malaysiakini and what was uttered in the court without mincing any words, you would tend to dismiss Malaysiakini’s infraction as a minor oversight. But Shafee’s opinion of the judge and his judgment, without any doubt, constituted contempt of court. How come the judiciary did not act with the same degree of indignation in this instance?

Is there a special privilege for the legal fraternity to be free with its words and opinion of the judiciary, however belittling, as compared to the lay person’s right to express similar sentiments about the judiciary? To many, this may appear to be a clear case of double standards.

Why hasn’t the attorney general sprung into action? After all, Shafee’s disparaging remarks and opinions were published in print? Malaysiakini also carried this. How come in this instance Malaysiakini is not in contempt of court?

After having been told that his words were harsh by the judge, Shafee did not show any remorse. He did not apologise. He did not withdraw the offending remarks. In any case, there were no such reports.

We are persuaded by the glaring differences in treatment and the appearance of double standards to ask, “Where is justice?”

“True freedom requires the rule of law and justice, and a judicial system in which the rights of some are not secured by the denial of rights to others.” – Jonathan Sacks

Law is not law, if it violates the principles of eternal justice – Lydia Maria Child

(The article is republished in Rebuilding Malaysia, with the permission of the author. It was first published in Aliran at this link on 10 April 2021)

(The views expressed are those of the contributor and do not necessarily reflect the views of MMKtT)

P Ramakrishnan is the long-serving former president of Aliran who served three and a half decades on its executive committee, and has been with Aliran since its inception in 1977. Now an ordinary Aliran member, he continues to highlight issues of public interest to a larger audience.