Review common law of scandalising the judiciary

COMMENT | We are concerned by the conviction and the sentence of 30 days imprisonment and a fine of RM40,000 against Arun Kasi for contempt of court.

On April 23, 2019, Arun Kasi was convicted of scandalising the court through two publications – "How a dissenting judgment sparked a major judicial crisis" and "Tommy Thomas must look into arbitration centre that sparked judicial crisis". 

The attorney-general initiated contempt proceedings against him in relation to both articles.

The Federal Court found that both articles insinuated that the Federal Court judges who heard the Leap Modulation case were corrupt, warranting an investigation by the MACC. 

The court found that this had the effect of bringing the court into contempt and to lower its authority in the eyes of the public.

The offence of scandalising the court is an antiquated form of contempt. 

Whether or not there was merit to Arun’s publication, the public should be able to express their views about the judiciary without being threatened with imprisonment. 

By prosecuting and punishing Arun in this manner, the attorney-general and the Federal Court have unwittingly given Arun a wider audience than he would otherwise have had. 

In fact, the offence of scandalising the court has been found to be incompatible with the freedom of speech in many jurisdictions such as England, Canada and the United States.

Further, the attempt to defend the judiciary through this outmoded offence only provokes further ridicule from the public. 

To quote Lord Pannick, a leading United Kingdom barrister: “The justification often given for retaining this offence is that we need to prevent public confidence in the administration of justice from being undermined.

"The irony is that public confidence in the judiciary is undermined far more by legal proceedings that suggest that the judiciary is a delicate flower that will wilt and die without protection from criticism than by a hostile book or newspaper comment that would otherwise have been ignored”.

Many misconducts and injustices have been exposed through the exercise of freedom of speech. 

Public criticism and debate, though it may be rude or offensive or even incorrect, must be allowed to take place with freedom of speech as its cornerstone. An enforced silence through an offence of scandalising the court may foster discontent, suspicion and contempt among the public much more than it would enhance confidence in the judiciary.

Arun’s sentence is also completely disproportionate to the offence he is said to have committed, and will have a chilling effect on the freedom of speech. 

It is unacceptable that mere speech, which does not endanger national security, public order or public morality in any way, is met with a custodial sentence. 

If indeed the judiciary enjoys a high level of public confidence, mere criticisms, including unfounded criticisms, would not undermine that confidence. 

The irony is that more damage seems to have been caused by the attorney-general and the Federal Court by the conviction and sentence of Arun.

In light of this, Parliament must now take necessary steps to review the common law on scandalising the court with a provisional view to abolish the same to prevent future incidents such as this.

This statement is endorsed by the following organisations and individuals:

Centre for Independent Journalism (CIJ)
Agora Society
Aliran
Bersih 2.0
Beyond Borders
Center to Combat Corruption and Cronyism (C4 Center)
Eliminating Deaths and Abuse in Custody Together (EDICT)
Knowledge and Rights with Young People Through Safer Spaces (KRYSS)
National Human Rights Society (Hakam)
North-South Initiative
Pusat KOMAS
Suaram
Tenaganita
The KLSCAH Women Section

and

New Sin Yew, Andrew Khoo, Cassandra Thomazios, Clement Ong Tun Heang, Cyrus Tiu Foo Woei, Farhan Haziq bin Mohamed, Hoe Sue Lu, Mansoor Saat, Ng Geok Chee, Rajsurian Pillai, Sarah Yong Li Hsien, Serene Lim, Siti Kasim, Sukhindarpal Singh, Usha Kula, Vince Tan, Vivek Sukumaran, Wong Huei Niang and Yohendra Nadarajan

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.