By M Ravi
United Nations intervention sought on contempt charges against Arun Kasi
The recent news of Arun Kasi, a Malaysian lawyer facing contempt charges for allegedly scandalising the judiciary in relation to 2 articles he wrote on Aliran- a news website covering issues of social importance, should come as a jolt at the heart of civil society.
The 2 articles- titled ‘How a dissenting judgment sparked a major judicial crisis’ and ‘Tommy Thomas must look into arbitration centre that sparked judicial crisis’ prompted Tommy Thomas, the Attorney General of Malaysia to institute committal proceedings in the Federal Court of Malaysia against Arun on 27th February 2019. Leave was granted by the Federal Court and the substantive hearing has been fixed for 13th March 2019 on an urgent basis.
In my view, the AG ought to reconsider his view to initiate contempt proceedings against Arun for the following reasons:
- The Proceedings represent an incursion into the independence of the Bar and impedes professional advocacy
Arun’s articles were written in the context of an expunction order made by the Federal Court, by which various constitutional observations made by a Court of Appeal judge in relation to an institution playing a role in administration of justice and also a direction made by the judge to the anti-corruption commission to investigate the matter were expunged. This case raises issues of serious public interest and importance, and the proceedings initiated against Arun for bringing these issues to the attention of the public seriously threatens the independence of the Bar and impedes professional advocacy.
Further, the UN Basic Principles on the Roles of Lawyers (“UNBRPL”) contains several provisions that explicitly deal with the independence of lawyers. Principle 16 of the UNBRPL sets out that the Government must: ensure that lawyers (a) are able to perform all of their duties without intimidation, hindrance, harassment or improper interference… (c) shall not suffer, or be threatened with prosecution or administrative, economic or other sanctions for any action taken in accordance with recognised professional duties, standards and ethics. Principle 23 grants lawyers the right to take part in public discussion on matters of the law, the administration of justice and the promotion and protection of human rights.
In writing the articles, Arun was acting in accordance and promoting the spirit of Principle 23 of the UNBRPL, and ought to be protected against prosecution under Principle 16.
- Arun’s comments merely reflected, at least in some way comments made by Justice Hamid Sultan Abu Backer in his sworn affidavit and is backed up by the commencement of a RCI into the allegations of judicial misconduct
The only defence to a charge of scandalising the judiciary is ‘fair criticism’. Arun’s comments here were undoubtedly fair criticism as they merely reflect comments made by Justice Hamid Sultan– a Judge in the Court of Appeal, and did not speak per se of any ‘corruption’ of the judiciary. In that regard, his comments did not go nearly as far as Justice Hamid Sultan did.
In addition, the affidavit sworn by Justice Hamid Sultan resulted in the Cabinet- led by Prime Minister Tun Dr. Mahathir Mohamed confirming that a Royal Commission of Inquiry (RCI) will be set up to investigate the claims made. If the comments made by Justice Hamid Sultan were sufficient to result in the commencement of an RCI, then it must be thought that the articles written by Arun reflecting those comments would surely constitute fair criticism.
- The Proceedings, being initiated in the Federal Court, denies Arun his fundamental right to appeal a possible adverse ruling
By initiating proceedings in the FC, Arun is deprived of his fundamental right to appeal. This is particularly important in this case- as the proceedings itself are a curtailment of Arun’s fundamental Constitutional rights of freedom of speech guaranteed by the Federal Constitution.
In Malaysia, unlike many other Commonwealth countries, the law on contempt has not been made an offence as such. The only provisions of written law dealing with it are in O 52 of the Rules and Art. 126 of the Federal Constitution (as reflected in s. 13 of the Courts of Judicature Act 1964). In 1999, there was some proposal to enact a Contempt of Court Act but that did not materialise.
Arts. 5, 7 and 8 of the Federal Constitution collectively disallows anyone from being punished except where it is pursuant to the law. Further, Art. 10 guarantees the right to freedom of speech. The commencement and continuation of these contempt proceedings deny the aforementioned Constitutional rights of Arun. In such a situation, it is especially important that Arun has a right to appeal against any adverse ruling.
- The Judiciary ought to be given the freedom to exercise its own powers to defend itself if it feels the need to do so
As has been stated, these proceedings have been initiated by the Attorney General on an ex parte basis against Arun. In my opinion, the AG need not have intervened as the Courts do not require their advocacy in this matter. It is undeniable all three of the High Court, Court of Appeal and Federal Court have the power to punish for contempt of itself. This is provided by Art. 126 of the Federal Constitution (as reflected in s. 13 of the Courts of Judicature Act 1964).
If the Court feels that the Judiciary has been scandalised, it is able to move contempt proceedings against Arun by issuing a show cause notice. There is no need for the AG to intervene unnecessarily.
In light of the above, I have made a complaint to the United Nations Special Rapporteur on the independence of judges and lawyers- in my capacity as an International Human Rights Lawyer. In my representations, I have urged the Special Rapporteur to hold a watching brief on the day of Arun’s hearing on 13th March 2019, in order to ensure that Arun’s rights to a fair hearing are not compromised.
In addition, I hope that the AG would reconsider his decision to proceed with the contempt proceedings against Arun. As Eric Paulsen- Malaysia’s representative to the Asean Intergovernmental Commission on Human Rights (AICHR) has said, “As it is often said justice is not a cloistered virtue. The judiciary cannot escape close scrutiny of its conduct & judgments, as the public has high expectations of its role as the custodian of justice & the Federal Constitution”. I agree with Eric and echo his call for the AG to reconsider his decision.
M Ravi is an International Human Rights Lawyer from Singapore.