Thursday, March 17, 2016

SUBJUDICE - Are you saying our Malaysian Judges not professional enough?

SUBJUDICE - there has been much talk about this, and maybe it is time to understand better what this is all about?

Some are saying that once a matter is before the courts, then nobody can discuss and talk about it until the matter is heard and decided by court. So, if there is a case filed concerning the 1MDB or the RM2.6 billion in court, then all of us cannot anymore talk about it...until the case is heard and decided by court, and remember can court cases (plus appeals thereafter) can go on for a very long time...years and years...So, file a case, and the whole issue is taken out of arena of public discussion, debate, etc...??? Well, in that case, when any issue like the 1MDB comes up, the 'guilty' can simply get someone to file a case - and, immediately the entire issue goes under the 'coconut shell'?  Let's not forget freedom of expression, freedom of opinion,...

Now, we have professional judges who are hearing and deciding cases, not like before when we had 'jury trials' - whereby members of the judiciary, being lay persons maybe influenced by 'outside factors' as well like discussions in the public, it is not possible unless one is suggesting that our Malaysian judges are incapable to act professionally...
'Ultimately, the test of possible or likelihood of prejudice has to have reference to the professional judge who will be hearing the case, not a collection of layman jurors - a system which has ceased to exist in our system of civil litigation' - YA Mohamad Ariff Yusof J, in the case of Syarikat Bekalan Air Selangor Sdn Bhd V. Fadha Nur Ahmad Kamar & Anor[2012] 6 CLJ 93

Then, of course the question of fundamental freedoms and human rights..Well, in the same judgment of the Malaysian High Court, this was discussed, and amongst others, the words of Lord Diplock was quoted which explains the point...

"...I entirely agree that discussion, however strongly expressed, on matter of general public interest of this kind is not to be stifled merely because there is litigation pending arising out of the particular facts to which general principles discussed would be applicable. If the arousing of public opinion by this kind of discussion has the indirect effect of bringing pressure to bear on a particular litigant to abandon or settle a pending action, this must be borne because of the greater public interest in upholding freedom of discussion on matters of general public concern...."
Hence, even if has a possible effect to one of the parties to the suit - they have to face it, because Freedom of Discussion on matters of general public concern is more important.


If not wrong, when Anwar Ibrahim was being tried, we heard a lot of comments and discussion from even the government - and, then nobody raised this issue of subjudice then.

Now, with regard the RM2.6 billion issue, given the fact that the money was discovered in the personal account of Najib Tun Razak - not the Prime Minister's Account per se. Do we have bank accounts of the Prime Minister in Malaysia - I doubt it, most probably it will accounts in the name of the government or maybe the Finance Ministry or the Prime Ministers' Department. 


Hence, Najib Tun Razak was a suspect being investigated on allegation that he may personally have committed a crime. Being a suspect, normally lawyers would advise to exercise the right of silence; i.e. do not say anything to the 'investigators', and tell them that anything that needs to be said, would be said in court. So, when Najib was a suspect, personally he could choose to be 'silent' and not say anything. 

But, being Prime Minister, he has the obligation to be transparent and accountable to the people of Malaysia, and most certainly Parliament.

What would have been best, would have been that he abdicate all his responsibilities and dealings with regard to matters connected and/or related to the things that he was being investigated on... to maybe his Deputy. But, alas in Malaysia, that may be problematic because effectively the Executive power really is with the Prime Minister - and it is he who decides who be in his Cabinet and who is not. 

So, the best would have been for Najib to resign as Prime Minister, and allow another to be appointed as Prime Minister, at least until all investigations are completed. Once the investigations are completed, he could again be Prime Minister. 

But Najib chose not to resign, and the Members of Parliament chose not to 'remove' him - something that MPs can do if they choose to withdraw their 'confidence' in him, which will result in a new MP, who enjoys the confidence of the majority being appointed Prime Minister. 

Now, irrespective whether investigations are ongoing or cases pending in court, with regard the RM2.6 billion, 1MDB and SRC, the Prime Minister and the government still has the duty of public accountability and transparency. There is no right to prevent discussions and/or to refuse to answer truthfully questions raised.


Now, SUBJUDICE certainly do not apply to an ongoing criminal investigation. 

Subjudice, certainly does not apply by reason that the PAC is deliberating this matter. PAC is a Parliamentary Committee composed of MPs. Of course, the independence of the PAC, is in question since the majority is still BN MPs? We hope that they will act independently irrespective of party affiliations.

And subjudice certainly does not apply in this case even if there cases in court, as it is without a doubt a matter of public interest and a matter of public concern, even if there is an on-going court case.

Now, likewise, with regards the cases concerning the Attorney General, likewise subjudice cannot be used to stop discussions on this subject matter - it a matter of public interest and public concern.

Surendran: Azalina fails to understand how sub judice works

FMT Reporters
March 17, 2016
PKR lawmaker says debate or questions in Parliament cannot be disallowed if it relates to a matter of national importance, even though a related case is pending in court.

PETALING JAYA: Minister in the Prime Minister’s Department, Azalina Othman has “completely failed” to understand how the sub judice rule applies in Parliament, a PKR lawmaker said.

N Surendran, in a statement, said debate or questions in Parliament cannot be disallowed if it relates to a matter of national importance, even though a related case is pending in court.

This, he added, was a view shared by other Commonwealth Parliaments, including the UK’s House of Commons.

The Padang Serai MP said there was no doubt the RM2.6 billion donation and RM42 million from SRC International Sdn Bhd that was deposited into the Prime Minister’s personal accounts were issues that implicated Najib Razak in a massive financial scandal with international ramifications.

He was commenting on Azalina’s statement yesterday that the government would not answer any more questions on the donations as the Bar had filed a judicial review on the Attorney-General’s decision.

Surendran also said that Azalina misunderstood the nature and scope of a judicial review, explaining that it was a review of the manner in which a public authority, which in this case was the AG, had made a decision.

“The Bar’s case is not about the merits or truth of the allegations against the PM on the 2.6 billion and SRC International.”

Therefore, any discussion by the Dewan Rakyat on these matters cannot be sub judice as the court was not concerned with the truth or otherwise of the allegations against the PM, he added.

The court, Surendren said, was only concerned as to whether the AG exercised his powers in accordance with the law.

“Hence, discussions in the Dewan on the matter will not carry any danger of prejudicing the court proceedings.” - FMT News, 17/3/2016

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