On March 31, 2016, Dewan Rakyat speaker Pandikar Amin Mulia had decided that all questions pertaining to the RM2.6 billion political donation deposited into Prime Minister Najib Abdul Razak’s personal accounts are sub judice.
This decision was made in accordance with Standing Order 23(1)(g), which stated that “a question shall not be so drafted as to be likely to prejudice a case under trial, or be asked to any matter which is sub judice”.
This was in view of, firstly, a judicial review filed by the Bar Council against attorney-general Mohamed Apandi Ali’s decision to clear Najib of all wrongdoings in accepting the donation, and secondly, the lawsuit filed by former premier Dr Mahathir Mohamad against Najib, seeking RM2.6 billion in damages.
Dr Mahathir’s lawsuit, Pandikar said, had also rendered questions on the scandal sub judice under Standing Order 36(2).
“I find that the interests of those involved in the writ would be jeopardised,” said Pandikar.
So far, so good.
However, yesterday on Oct 17, 2016, the learned speaker ruled in the Dewan Rakyat that lawmakers will not be allowed to debate the United States Department of Justice’s (DOJ) civil suit seeking forfeiture of assets linked to 1Malaysia Development Berhad (1MDB), as it could be sub judice.
“It is a matter that is still being discussed in court... therefore it is sub judice. The minister need not answer such questions,” Pandikar said.
Pandikar also said: “All answers will be given via written replies. Those who want to read (the answers) can do so.”
Now, let’s not kid ourselves in thinking that the Speaker does not know the true meaning and spirit of the sub judice doctrine, and when it applies and when it doesn’t.
Basically, sub judice means that a particular case or matter is under trial or being considered by judge or court and is therefore prohibited from being discussed publicly.
The speaker knows very well that when it came to the issue of the RM2.6 billion political donation deposited into Prime Minister Najib’s personal accounts, there were two court cases in Malaysia pertaining to that issue that were ongoing, hence his ruling on March 31, 2016. Fair to say that the interest of those involved in the two cases could be jeopardised.
However, when it comes to a case that is ongoing in the United States of America, how can discussions of that case here in Malaysia be sub judice? Can the speaker actually now say the interests of those involved in the US civil suit would be jeopardised? In fact, is he actually saying just that?
Crux of the matter
The crux of the matter here is the not allowing lawmakers to debate the United States Department of Justice’s civil suit. Is this a healthy practice in a democracy?
In the High Court case of Khairul Azwan bin Harun vs Mohd Rafizi bin Ramli [2016]10 MLJ 204, the learned High Court Judge Nantha Balan J said this:
“[33] As for the invitation or challenge to a debate about the Mara property purchase issue, again I do not see how this can be construed as breaching the sub judice rule as debates are a healthy, vibrant and necessary aspect of a maturing democracy and progressive society. I should add that on the facts of this case, the public interest element outweighs any argument on sub judice as debates on important public interest issues should not be stifled or be readily sacrificed on the altar of sub judice. But there may be exceptions to tills approach and the balance may be shifted accordingly. But in the present case, I do not see any exception applying to exclude public discussion or dissemination of matters concerning the Mara property purchase issue.”
It is quite apparent that a civil suit in United States linking a sovereign fund wholly owned by the Malaysian Finance Ministry is an important public interest issue. And what more suitable forum for a debate on it than in the Malaysian Dewan Rakyat among the people’s representatives.
With this sort of ruling, the speaker is seen to be suppressing a healthy parliamentary debate on a public interest issue.
One final thought. The learned speaker thinks that by merely saying sub judice, everything goes away. He surely must know that by having a debate in the Malaysian Dewan Rakyat, and, if there is a possibility of a breach of the sub judice rule in relation to the US civil suit vis-a vis the US Court, that breach will be followed by a case of contempt of court.
The question that arises is who would be the person, if at all, to initiate such contempt proceedings, and against whom? US attorney-general Loretta Lynch against Malaysian Members of Parliament?
You can see now how ridiculous the learned speaker’s ruling actually is. Again, it is not that the speaker does not know the true meaning and spirit of the sub judice doctrine, and when it applies and when it doesn’t.
PUTHAN PERUMAL is an advocate and solicitor of the High Court of Malaya.
