Severe written judgement of Court of Appeal on Lim Guan Eng case

(Malacca, Friday): Today I received a frantic and desperate call from a woman lawyer staying at Condominium Panorama in Kampong Kerinchi, Kuala Lumpur who was very upset and angry by the hardships and sufferings caused by the water shortage crisis, the unsatisfactory and unfair water rationing system and the rounds by water-tankers, the indifferent and insensitive attitude of water department personnel to public complaints, the yellowish water and asked why Malaysia had gone back by 50 years!

I subsequently sent an urgent fax to the Works Minister, Datuk Seri Samy Vellu asking him to send an official to the Kampong Kerinchi condominium to listen and attend to the complaints of the residents.

This was one further instance of the consequences of not having good governance in Malaysia where, suddenly, the people are faced with multiple crises - whether economic and financial crisis, water shortage crisis, clean air crisis, food shortage crisis in Sabah, EPF crisis, cost-of-living crisis  or the crisis of confidence in the judiciary.

The Lim Guan Eng case is another instance of what can happen when there is no good governance in the country and this is why there is national outrage that a diligent, conscientious and outspoken Member of Parliament have to go to jail for 36 months when what he sought to do was to protect the honour, the human rights and women’s rights of an underaged 15-year-old girl.

When her grandmother, Puan Pendek Ahmad, who is with us tonight, approached Lim Guan Eng,  she was at the end of her tethers, for she had no where to turn to for help for she was up against no ordinary person but the most powerful personality in the Malacca state.

As Puan Pendek has just said, if not for Guan Eng, she would not be able to even see her grand-daughter at the time, as she was under detention.

There is something wrong with our values and our society if a responsible MP who goes to the defence of the honour, human rights and women rights of an underaged girl should be jailed for 36 months, with the girl even detained for a period while the accused is able to get off completely scot-free.
 

The Lim Guan Eng  case has brought to the fore the fundamental issues of justice, freedom, democracy and good governance in Malaysia.

We are not here to attack the judiciary or any judge, but the people must have the right in a democratic society to express their concern and outrage at a society and a system  which could produce such an outcome.

Two days ago, the Court of Appeal released its written judgement on its decision on April 1, 1998 which upheld the conviction of Guan Eng on two offences under the Sedition Act and the Printing Presses and Publications Act and enhanced his sentence from RM15,000 fine to 36 months jail entailing his disqualification as Member of Parliament.

I am surprised by the very severe judgement of the Court of Appeal written by Justice Gopal Sri Ram.

On the “false news” offence under the Printing Presses and Publications Act,  he said:
 

“Parliament’s aim in enacting the provision was obviously to ensure truth in publication of news and providing severe penal consequences for those who publish false news maliciously.  It is a serious thing in itself to publish false news. The seriousness of the matter is compounded when the publication is malicious.  Those possessed with the power to influence public opinion bear a heavy responsibility to ensure that they do not mislead the general public because of the grave consequences that may ensue by reason of what they publish. The malicious publication of false news by people who wield considerable influence over public opinion can destroy the equilibrium of society and cause untold harm and injury to the peace and security of this country. In these circumstances it is the plain duty of the courts to impose a sentence that brings home the seriousness with which the law views such criminal conduct.”

Guan Eng did not seek to “destroy the equilibrium of society and cause untold harm and injury to the peace and security of the country”. In fact, in coming forward to defend the honour, human rights and women’s rights of the 15-year-old underaged girl, Guan Eng was seeking to protect the “equilibrium of society” which would be gravely upset if the honour, human rights and women’s rights of underaged girls can find no protection.

The judgement said that “Those possessed with the power to influence public opinion bear a heavy responsibility to ensure that they do not mislead the general public because of the grave consequences that may ensue by reason of what they publish”.

Who could have more “power to influence public opinion” than the Prime Minister, Datuk Seri Dr. Mahathir Mohamad.  In the 1995 general elections, Mahathir maliciously published the false news that I had tried to provoke the Police by  challenging  the police to arrest me, which was given extensive coverage over both the electronic and printed media for a few days.

I had never done so and this was why Penang DAP leaders at the time  lodged a report against Mahathir for “maliciously publishing false news”, but no action whatsoever had been taken against the Prime Minister.

Isn’t this double standards?   Is it an offence to point out such double-standards, whether by  the police or the Attorney-General?

It would appear from the Court of Appeal judgement that even though there are such double standards, it is an offence to point out such double standards.

Thus, the judgement said:
 

“Thus, the public pillorying of the Attorney-General for exercising any of his powers under Article 145(1) of the Federal Constitution in one way rather than another would fall squarely within the purview of section 3(1) of the Sedition Act 1948.  To allege double standards against the Public Prosecutor in deciding which cases ought to be brought before the courts (which is the thrust of the words in the first paragraph of the second charge) amounts to denigrating and undermining the administration of criminal justice.”

Can this be the law of the land?  This passage in the judgement is very surprising because this was never an issue and it was never canvassed at the Court of Appeal whether by the Public Prosecutor or the defence counsel.

The judgement also said:
 

“It is of vital importance that the public enjoys confidence in the administration of justice of which the courts form an integral part.  Speeches or publications that bring the administration of justice into hatred or contempt produce a serious consequence.  For, they have the effect of destroying public confidence in one of the pillars of the democratic system of government. It is in recognition of this harm that Parliament enacted section 3(1)© of the Sedition Act.”

Guan Eng had not set out, nor did he attack, the judiciary to bring it into public ridicule or hatred. This passage  brings to mind  the case of the 33-page “poison-pen letter” which made 112 allegations against 12 named judges for corruption, abuses of power and misconduct.

The Attorney-General at the time had described the 33-page poison-pen letter as the work of “venomous elements who are out to discredit the judiciary and subvert justice in our beloved country.”

He said: “As Attorney-General and Public Prosecutor, it is my duty and responsibility to ensure that the judiciary and the legal profession be cleansed of these treacherous elements who, by their vile, insidious, devious and scurrillous allegation in this pamphlet has sought to undermine the integrity of the judiciary and the administration of justice in this country.

“Today is the Ides of March. But unlike that fateful day in ancient Rome when brutish beasts succeeded in killing Caesar, today we launch this pre-emptive strike at these conspirators and Insya Allah, we will ferret them out, whoever they are, and bring them to justice.”

However, the High Court judge who subsequently admitted authorship of the 33-page “poison-pen letter” was allowed to resign from his judicial post and was never charged in court.

Malaysians are entitled to ask whether Guan Eng had committed a more serious offence than the author of the 33-page “poison-pen” letter, which the Attorney-General had described as calculated “to discredit the judiciary and subvert justice in our beloved country”  when all he sought to do was to defend the honour, human rights and women rights of a 15-year-old underaged girl?

Even if Guan Eng is held as having crossed the line in his overzealousness to defend the honour, human rights and women’s rights of the underaged 15-year-old girl, could his offence be more serious than that of the author of the 33-page “poison-pen” letter against 12 named judges, who was never charged, let alone fined or jailed?

Even if Guan Eng is held as having crossed the line in his overzealousness to defend the honour, human rights and women’s rights of the underaged 15-year-old girl, his offence can only be one or two per cent of the gravity of the offence committed by the author of the 33-page “poison-pen” letter against the Judiciary.

If the Attorney-General should choose to exercise his discretion not to charge the High Court judge who authored the “poison-pen” letter, did he exercise his discretion properly, fairly and justly in deciding to prosecute Guan Eng and even to demand his disqualification as Member of Parliament and the imposition of custodial sentences?

The Court of Appeal judgement said that “It would be quite wrong to assume that the administration of justice is confined to matters actually pending before a court of law”, and quoted from the speech of Lord Diplock in Attorney-General v. Times Newspapers Ltd. (1974) A.C. 273,309  on the three aspects of the administration of justice.

The third aspect is that, “once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law”.

Is the Attorney-General prepared to institute not only contempt of court proceedings but also sedition charge against the Prime Minister when he publicly endorsed the Court of Appeal decision to convict and sentence Guan Eng to 36 months jail, as in view of his position as the most important person responsible for all judicial appointments and promotions, whether the High Court, Court of Appeal or Federal Court, his public pronouncement was a clear message to the Federal Court which tantamount to an usurpation of the functions of the Federal Court in the Lim Guan Eng appeal case?

(8/5/98)