This column is once again taking a walk, not on cobblestones but entering a minefield, on the issue of discussing or criticising judgments made in a court of law.
The boundaries are limited. Senior lawyer Gurdial Singh Nijar in a commentary on Sept 20 last year noted: “The Malaysiakini contempt prosecution case by the attorney-general has brought the realisation that you can be made criminally liable for criticising the judiciary.”
Recalling that Malaysiakini’s editor-in-chief was set free, but the portal was fined a hefty RM500,000 for carrying subscribers’ comments, which by any account were scurrilous.
“Essentially, it means bringing the institution of the judiciary into disrepute, thus undermining the administration of justice. An offence created by the common law,” he opined.
Why revisit an issue which has been buried and consigned to history to be archived? On Wednesday, the Johor Bahru High Court sentenced a 27-year-old clerk, Sam Ke Ting, to six years’ jail and fined her RM6,000 for reckless driving, causing the death of eight teenage cyclists five years ago.
More importantly, Sam’s lawyer asked for a stay of execution since they would be appealing the decision at the Court of Appeal. However, judge Abu Bakar Katar rejected this and instructed Sam to begin her sentence immediately.
Expectedly, social media was abuzz with the decision. Criticism was not only on the sentence but on the refusal of a stay of the jail sentence. Comparisons were made – rightly or wrongly.
She has since filed a leave application to appeal from the Court of Appeal. Her lawyer has also filed a certificate of urgency to expedite the hearing of the matter.
‘Don’t attack the judges’
Some of the posts on the case on Facebook and Twitter cannot be reproduced as neither the editors of Malaysiakini nor I would want to incur the wrath of the judiciary because they “scandalise” the judiciary. Merely quoting them would court trouble.
This is because Malaysiakini was not pulled up for any article or commentary it published, but the comments from five readers who were said to have ridiculed the judiciary and smeared the reputation of the judges.
Meanwhile, the social media posts concerning Sam’s case were ruthless, uncouth, scandalous and outrageous to say the least.
But one from Teluk Intan MP and lawyer Nga Kor Ming (without any such foul-mouthed words) echoed the views of hundreds of Malaysians: “I am shocked to notice that Sam had been denied bail pending her appeal, but on the other hand (former prime minister) Najib (Abdul Razak) is free to go everywhere he likes despite being convicted twice by the High Court and the Court of Appeal. Justice must not only be served but it must be seen to be served.”
The late Bhag Singh, who was the legal adviser to many media groups when talking to young reporters in the past on media laws always maintained: “You can criticise the judgment by arguing with reasons but don’t attack the judges - their private lives included.”
He then cited several decided cases from the Malayan Law Journal where convicted persons through their lawyers criticised and found fault with the judgment.
The Najib comparison
More recently, on March 15, lawyers acting on behalf of Najib argued in the Federal Court that he did not get a fair trial at the Court of Appeal last year as his bid to adduce fresh oral evidence to overturn his 12-year jail sentence and RM210 million fine in the RM42 million SRC International corruption case was rejected out of hand.
His lead lawyer, Muhammad Shafee Abdullah, also claimed he was not given the chance to present his submissions properly as the three-man bench had denied his request to postpone the hearing despite being in quarantine at the time for being a close contact with a Covid-19 patient. He had asked for a 10-day adjournment for the application to adduce evidence.
There was yet another twist to this case. The following day, the Office of the Chief Registrar of the Federal Court made a police report on allegations in two online articles dated March 14, namely on the portal MalaysiaNow titled ‘Group calling for Najib’s pardon now wants judge Nazlan arrested’ and on the blog Malaysia Today titled ‘Shocking revelation: Najib’s trial judge Nazlan’s conflict-of-interest exposed’.
“It is noted that the statements that were published in those articles contain a few matters which are believed would interfere with the administration of criminal justice and this country’s judiciary,” the Office of the Chief Registrar of the Federal Court said in a statement.
Lawyer Siti Kassim took a more pragmatic view on Facebook: “Just my opinion. You may disagree with it. It is in no way undermining the learned judge’s decision.
“The court should strike an appropriate balance in competing considerations. There should be a balance between the competing goals of deterrence and retribution. There are many factors that must be taken into consideration when sentencing.
“Such as culpability is assessed with reference to the offender’s role, level of intention and/or premeditation and the extent and sophistication of planning. Harm - which the offence caused, was intended to cause or might foreseeably have caused.
“The court should take into account factors that may make the offence more serious and factors which may reduce the seriousness or reflect personal mitigation.”
The court’s discretion
It may be noted that no bail is allowed by law on offences related to security, firearms, treason, murder, kidnapping and drug trafficking which carry death sentences.
However, for non-bailable offences, the court has the discretion to grant it at the application of the defence under Section 388 of the Criminal Procedure Code.
But it must be said that in two highly-publicised cases, bail was allowed to two who were charged with murder.
In 2002, Justice S Augustine Paul granted bail to retired lawyer Balwant Singh, who was charged with murder. He was alleged to have shot a motorcyclist along Jalan Maarof, Bangsar, after an altercation, but he was granted bail as “he was sick and infirm”. He was subsequently freed.
Three years ago, the Federal Court allowed Samirah Muzaffar, ex-wife of the late Cradle Fund chief executive officer Nazrin Hassan, to be released on bail of RM500,000 in two sureties pending her murder trial.
Samirah, two teenagers aged 14 and 17, and Indonesian national Eka Wahyu Lestari, who is still at large, were charged with the murder of Nazrin, 47, at a house in Mutiara Homes, Mutiara Damansara, on June 13, 2018. The case is currently being heard.
More recently, a teen girl was charged at the Kemaman Magistrate’s Court on Feb 15 with killing her baby at a house in Seri Bandi in Kemaman, Terengganu, on Feb 8.
However, she was denied bail pending trial. Her application to be referred for mental health evaluation was also rejected by the court. Her appeal for bail has been filed at the Court of Appeal.
The debate on bail for those charged with capital offences will continue and the question to ask is: Will Facebook and Twitter face the wrath as Malaysiakini did because they too can be seen to be “scandalising the judiciary” as they have also allowed dodgy and hurtful remarks?
What’s good for the goose must be good for the gander! - Mkini
R NADESWARAN is a veteran journalist and writes on bread-and-butter issues. Comments: citizen.nades22@gmail.com
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.
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