Thursday, April 25, 2019

Lawyer Guilty of 'scandalising the court' contempt, and jailed...time to abolish this contempt in Malaysia?

Lawyer Arun Kasi was convicted on 23/4/2019 of scandalising the court through two articles titled: 'How a dissenting judgment sparked a major judicial crisis' and 'Tommy Thomas must look into arbitration centre that sparked judicial crisis'. Federal Court sentenced Arun Kasi, to 30 days’ jail and fined him RM40,000 after finding him guilty of contempt of court over his two statements criticising the proceedings and decision of a court case.

CONTEMPT OF COURT can be punished. This would be disobeying a court order, or even actions disrupting a judicial proceedings. But certainly not highlighting possible corruption and/or hanky panky that happens in court...People do not have the capacity of personally investigating and getting to the truth - that is the job of the relevant authorities to investigate and get to the truth - the idea of 'punishing' someone who highlighted these possible wrongs really is disappointing...

'criticising the proceedings and decision' of court - well, that is what lawyers do when they appeal court decisions. Well, this is also what many writers and commenters do about many a court decision, an exercise that has helped also make the administration of justice better...

Courts and judges are infallible and 'good' - they will always act INDEPENDENTLY and no judges will be 'corrupted' by money or 'directions' or 'orders' or other threats or promises? No judges will make mistakes by reason of ignorance or failure to consider legal points/arguments...

This is Malaysia, and we have a history of 'allegations' and raising of issues and concerns about the 'corruption' of the administration of justice...Remember the 1988 Judicial Crisis, remember the allegations against Judge Augustine Paul in his handling of the Anwar Ibrahim trial, the issue about a lawyer found holidaying with a senior judge, the issue of a retiring Chief Justice joining a law firm soon after retirement,...the contempt of scandalizing the court/judiciary must be abolished...

Now, in this case there was question of corruption and MACC - will the allegations be investigated?

There was also the question of the higher court expunging part of the dissenting judgment of the lower courts - Any explanations? A court order could be 'corrected' - but not a written judgment which sets out the views and reasoning of a judge, here there are questions of whether this happened, and WHY?

The contempt proceedings over but what about the matters highlighted in the articles of the said lawyer --- will we get some answers?

Did what was alleged FALSE - or it matters not? That be the question now...

See earlier related post:-

'Scandalizing the Court' a contempt that should be abolished in Malaysia? Freedom of expression and duty to highlight suspected wrongdoings/mistakes more important?

Maybe not proper for Tommy Thomas to act for AG in this contempt proceedings Arun Kasi?



Lawyer Arun Kasi gets 30 days’ jail, RM40,000 fine for contempt of court

23 Apr 2019 / 17:27 H.
PUTRAJAYA: The Federal Court today sentenced lawyer Arunachalam Kasi, better known as Arun Kasi, to 30 days’ jail and fined him RM40,000 after finding him guilty of contempt of court over his two statements criticising the proceedings and decision of a court case.

Justice Tan Sri Ramly Ali, who led a five-member panel, held that Arun Kasi’s contemptuous statements against the Federal Court were very serious and tarnished the good name of the judiciary as a whole, undermined the public confidence in the judiciary, and ridiculed, scandalised and offended the dignity, integrity and impartiality of the court.

“We have also considered the Bar’s submission not to impose a custodial sentence. However, the gravity of the offence committed by Arun Kasi, coupled with his refusal to tender an unreserved apology, justifies this court taking a serious view of the matter.

“In the circumstances, we are of the view that the appropriate sentence is a term of imprisonment of 30 days from today and a fine of RM40,000 in default 30 days’ jail,” said Justice Ramly.

The panel, which also consisted of Federal Court judges Tan Sri Azahar Mohamed, Datuk Rohana Yusuf, Datuk Tengku Maimun Tuan Mat and Datuk Nallini Pathmanathan, had dismissed Arun Kasi’s application for a stay of execution of the ruling.

“We find there is no merit to stay the ruling. Stay is dismissed. Arun Kasi to serve his sentence today,” said Justice Ramly.

Datuk Joy Appukuttan, counsel for Arun Kasi, requested for a stay of execution, saying he will file the review application against today’s decision. Attorney-General Tommy Thomas argued that this was not a criminal case that needs to get a stay pending an appeal to the next stage.

Arun Kasi, who was standing outside the dock, also asked for a stay and informed the court that he is currently receiving treatment in a hospital and the doctor had given him permission to attend court proceedings and that he has to return to the hospital.

On Feb 27 this year, the Federal Court allowed the Attorney-General’s ex-parte application for leave to initiate contempt proceedings against Arun Kasi for allegedly making criticisms in reference to an affidavit of Court of Appeal judge Dr Abdul Hamid Abu Backer on alleged judicial misconduct, in two articles published on the Aliran online portal on Feb 16 and Feb 22, 2019.

In both the articles, Arun Kasi had allegedly criticised the conduct of the proceedings by the Federal Court and the decision that was delivered on Nov 11, 2018, in the case of PCP Construction vs Leap Modulation.

Justice Ramly said the panel, in imposing the sentence, had carefully considered the submission of the Attorney-General and the mitigation by Arun Kasi and his counsel.

“We note that he (Arun Kasi) has expressed his regret if his writing is seen to have undermined public confidence in the judiciary. But, at the same time, we note that he has not tendered an unreserved apology despite a query from the court,” he said.

Justice Ramly said the case should serve as a reminder that while the members of the public are entitled to express their opinion rationally and engage in discussion on the decision of a court, this has to be done within the limits permitted by law.

He said it is important to emphasise that the jurisdiction of the courts does not exist to protect the dignity of individual judges personally but serves to protect the Judiciary as the third branch of government.

“Neither is such jurisdiction to be utilised to restrict honest criticism, which is based on rational grounds, to ascertain the manner in which the court performs its functions. Any such discussion should, in any event, be conducted bona fide, for and in the public interest,” he said.

The judge said the panel was not persuaded that Arun Kasi’s statements were authored in the public interest as it was clear to the court that the authority of the law as administered by the courts was flouted and, Arun Kasi, as an officer of the court, was expected to uphold the dignity of the court.

“As an officer of the court, he should always act in a responsible manner and, in particular, he should not breach the law, for, if he does so, he must face the consequences.

“That is why, in the present case, we hold the view that the sentence must reflect the seriousness of the offence committed by him,” the judge said.

In his judgment, Justice Ramly said the panel had given serious consideration to Arun Kasi’s testimony that his two statements were not directed at the Federal Court or Judiciary. However, having applied the objective test the panel outlined earlier and reading the statements in their entirety, it is crystal clear that the statements were directed at the Federal Court and Judiciary.

“We have weighed the competing evidence and submissions as to whether the impugned statements are fair criticism or amount to scandalising contempt.

“For the reasons stated above, we are satisfied beyond reasonable doubt that Arun Kasi’s statements were calculated to erode public confidence in the administration of justice and the Judiciary. We, therefore, allow the Attorney-General’s application for committal. We find Arun Kasi guilty of contempt of court,” said Justice Ramly. — Bernama - Sun Daily, 23/4/2019,

Abolish laws against scandalising court, Parliament told after Arun Kasi’s conviction

Arun Kasi was convicted of scandalising the court through two articles titled: 'How a dissenting judgment sparked a major judicial crisis' and 'Tommy Thomas must look into arbitration centre that sparked judicial crisis'. — Reuters pic
Arun Kasi was convicted of scandalising the court through two articles titled: 'How a dissenting judgment sparked a major judicial crisis' and 'Tommy Thomas must look into arbitration centre that sparked judicial crisis'. — Reuters pic
KUALA LUMPUR, April 24 — A group of lawyers and NGOs have demanded the Parliament today to review and abolish laws against scandalising the court, in light of yesterday’s conviction against fellow lawyer Arun Kasi for two of his articles.

In a press statement, the group argued that the offence of scandalising the court is an “antiquated” form of contempt and whether or not there was merit to the publication, the public must have freedom of expression without the threat of incarceration.

“By prosecuting and punishing Arun Kasi in this manner, the Attorney General and the Federal Court have unwittingly given Arun Kasi a wider audience than he would otherwise have had,” said the joint press statement.

“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,” they added.

Arun Kasi was convicted of scandalising the court through two articles titled: “How a dissenting judgment sparked a major judicial crisis” and “Tommy Thomas must look into arbitration centre that sparked judicial crisis”.

The articles insinuated that the Federal Court Judges who heard the Leap Modulation case were corrupt, warranting an investigation by the Malaysian Anti-Corruption Commission (MACC).

Attorney General Tommy Thomas then initiated contempt proceedings against him in relation to the two articles, accusing it of lowering the court’s authorities in the eyes of the public.

The group consisting of organisations such as Bersih 2.0, Centre for Independent Journalism, Tenaganita, Suaram and individual lawyers Siti Kassim, Sukhindarpal Singh and Andrew Khoo among others added that misconducts and injustices had been exposed through 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,” said the statement.

They also claimed that the sentence of 30 days imprisonment and a fine of RM40,000 was also disproportionate to Arun’s offence as it does not endanger national security, public order or mroality.

The statement pointed out that if the judiciary already enjoys high public confidence, it can easily shrug of any criticisms, including unfounded ones.

“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 Kasi.

“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,” said the statement. - Malay Mail, 24/4/2019


Press Release
Arun Kasi Found Guilty of Contempt of Court  

The Malaysian Bar is deeply concerned with the decision of the Federal Court today in finding Arunachalam s/o Kasi (“Arun Kasi”) guilty of contempt of court, and the steep sentence of 30 days’ imprisonment and a fine of RM40,000 and, in default of the fine, a further 30 days’ imprisonment.
It has been reported in the online media that during mitigation of his sentence, Arun Kasi had said that he had not intended to undermine the Judiciary, but only wanted reforms to be carried out in the Asian International Arbitration Centre (Malaysia). 

First and foremost, it is crucial to appreciate that the law of contempt serves the public interest.  The root principle on which the law of contempt is founded is not to vindicate the dignity of any particular judge or the Court itself, but is, in the words of our Federal Court, to “prevent an undue interference with the administration of justice in the public interest”.  There is a complex interplay between this objective and the fundamental liberty of freedom of speech and expression, which is enshrined in Article 10 of the Federal Constitution.  A balance between these two weighty concerns — one relating to the public interest, and the other to individual liberties — must therefore be struck. 

The prosecution of contempt against Arun Kasi and the sentence meted out create a negative perception of a stifling effect on public discourse, which is exacerbated by the lack of clear parameters governing the offence.   The Malaysian Bar is of the view that — as was submitted by our counsel in the Federal Court today — custodial sentences should not be imposed for contempt of court except perhaps for the most serious cases imaginable. 

Every individual has the right to make fair comment — within the boundaries of courtesy and good faith — on any matter of public importance.  In no way should criticism of court decisions within these limits be viewed as contemptuous.  In order for judicial decisions to stand the test of time, they must survive the test of public scrutiny.  Only then can they be seen as sound judgments that are worthy to govern our conduct and direct our actions. 

To this end, the Malaysian Bar notes that the offence of “scandalising the Court” has been abolished in the United Kingdom (England and Wales).  It bears reminding that the Court’s power to punish for contempt should be used sparingly and, as recently held in our High Court, as a “last resort in the interest of administration of justice”. 

We understand that Arun Kasi’s requests for the audio recordings (“CRT recordings”) of the earlier proceedings of his case had been rejected by the Court.  As he intends to apply for a review of today’s Federal Court decision, the Malaysian Bar urges the Court to accede to his request without delay.  All relevant and requisite information or materials must be made available to Arun Kasi, as the affected party, to enable him to take legal advice and prepare for his case.  

Abdul Fareed Abdul Gafoor
Malaysian Bar
23 April 2019

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