The decisions by the Speaker of the Dewan Rakyat to strike out the motion to impeach the Election Commission chief and its commissioners, and to further not entertain any motions pertaining to the recent general election were misguided and based on a skewed understanding of the principles of sub-judice contempt.

Sub-judice

contempt is a species of contempt. It would as such be useful to understand the what, why and when of contempt as whole. The judiciary is one of three pillars of democratic society, providing a necessary check and balance. To do this effectively, the judiciary must not only be independent, but must also be seen to be independent. This phrase has been so often bandied about, that to many of us it has become a clich.

There is however great value in it. It is important to remind ourselves that the judiciary serves the public interest, not only by deciding cases but also by providing the comfort that comes with the knowledge that there is 'someone' to watch over us, to protect us. In order to do this effectively, public confidence in the judiciary must be maintained at the highest level. It is to allow itself to maintain its integrity, and that of its processes, in particular the due administration of justice, with a view to maintaining public confidence that the Federal Constitution has empowered the courts to deal with contemptuous acts.

What is a contemptuous act?

That raises the further question of what is a contemptuous act. Jurists have broadly classified these acts into civil contempt and criminal contempt. The former involves breaches or violations of court order. The latter involves acts which impact more directly, such as scandalising the courts. One of the more famous historical examples from the UK courts involved a litigant throwing an egg at a judge just as he was about to leave the court. Other instances include the making of wholly unjustified and disparaging remarks about the integrity of the court in relation to particular cases, and the subverting or attempting to subvert the judicial process. This latter instance is where the principles of sub-judice come in.

When a case is underway, the expectation is that nothing will be permitted to bear in on the independence and impartiality of the proceedings. As such, any form of direct interference will be jealously guarded against. Such interference could take different forms including intimidating or threatening witnesses or counsel, or attempting to influence the decision makers. Decision makers include the judge or judges presiding over the particular case and jurors. This is why in some of the more well publicised trials occurring in the USA or the UK, one will from time to time read of a jury being sequestered, or kept separate and away from influence. During this time, jurors will not be permitted to read the print or electronic media or watch or listen to the news, for obvious reason.

Significantly, one will never hear of judges or counsel being sequestered. This is because these individuals have taken oaths of office and have professional duties to the court. There is, as such, an expectation that they will be remain impartial or will otherwise face the consequences. The question of their being influenced in any way by external factors, such as a discussion, is negligible. Having said that, and in fairness to the advisors to the Speaker, Malaysian case law does put the threshold for sub-judice contempt very low and intention has been stated to be irrelevant to whether there is contempt or not. Whilst this is troubling, several factors could lift a discussion by parliamentarians beyond the reach of contempt.

Firstly, the role of a parliamentarian revolves around representing his or her constituents. This will more often than not involve raising concerns in parliament. These concerns may not always be substantiated to the degree necessary in court. Such half-substantiated positions could result in legal action. As such, parliamentarians are provided with an immunity known as 'absolute privilege'. This protection underscores the need to keep the freedom of expression intact for purposes of parliament or the state assemblies as full and frank discussions would otherwise not take place.

Secondly, the issue of whether the EC acted properly, and whether all or some its members ought to be removed, is an issue which is critical to the well being of the nation. Free, fair and genuine elections are a basic right of the people. They must not be allowed to walk away with an underlying doubt as to whether the general election they had just participated in had been 'fixed' or marred to the extent that the result was questionable.

The chaotic events of the recent general election are illustrative. These events, and those like them, cannot be permitted to re-occur. The Dewan Rakyat is an, if not the most, appropriate forum for this issue to be considered. This is more so in the light of a provision of the Federal Constitution laying down that the decision of the Dewan Rakyat as to whether a member of the Dewan had become disqualified would be conclusive.

Whist this provision preserves the right of concerned parties to pursue elections petitions, it underscores how involved the Dewan Rakyat is with issues pertaining to the general election. It also raises a question as to how the Speaker could have in such a blanket manner restricted the raising of any issues pertaining to the general election.

It must be appreciated that the role and function of the Dewan Rakyat, and its members, is different from that of the courts. The fact of an overlap ought not be used as a justification to restrict one or the other from doing what it is that they are required to do. The striking out of the motion is chilling for it could be a signal of things to come, the start of a slippery slope. Any restriction, and that is what the Speaker has placed on the Dewan, must be closely scrutinised against the larger purpose of the Dewan Rakyat.

Levels of absurdity

Thirdly, the sub-judice rule can be taken to levels of absurdity. Much can be said of its relevance to the Malaysian judicial process, or the lack thereof, by its inconsistent application. Numerous sensational trials are occurring in the Malaysian courts at this point in time, including two notorious murder trials.

The media is in a feeding frenzy. Surely media reports, some of which have been criticised for having taken particularly lurid slants, could be said to have crossed the threshold into being in danger of having a direct influence on the mind of the judges in question. No action has however been taken by the courts concerned, the Attorney General's Chambers or the defence.

These media reports, as slanted as they may be, only go to illustrate the very achievable balance between the freedom of expression and the need to protect the integrity of the judicial process.

Reasonable and fair comment should be encouraged as it is only through discussions prompted by these comments that a greater understanding of the society we live in and our roles in that society can be achieved. The freedom of expression cannot be arbitrarily compromised.

There is another absurdity. Election petition hearings are due to commence shortly. These petitions have been brought by aggrieved persons who wish to challenge the elections results in a constituency in which they have an interest. Many of the related hearings, in particular those pertaining to more important, famous or infamous candidates will be publicised. The judges hearing other petitions will have access to these reports. Applying the logic of the advisors to the Speaker, these reports should be blacked out. Applying that same logic, a lot of information would be blacked out.

The move to curb full and frank discussion of matters pertaining to the general election is symptomatic of how serious issues which affect our lives as citizens are dealt with by decision makers or those in positions of authority: defensively and paternalistically. If Malaysian society is not mature enough to handle discussions pertaining to these issues, something must have gone very, very wrong.

We are coming in to our 47th year as an independent nation. If the government has not been able to raise the sophistication and maturity of Malaysians to a point where we can be trusted in our own judgments, we should perhaps start questioning that.

MALIK IMTIAZ SARWAR is a lawyer and the deputy president of human rights movement Hakam.