COMMENT | Probe against Santiago, Gan a waste of police time
COMMENT | Here we go again. The unfair persecution and unnecessary waste of police time. Something is seriously wrong.
The police investigation into DAP member of parliament Charles Santiago and Malaysiakini co-founder and chief editor Steven Gan is nothing more than a futile witch-hunt. That will be in the minds of most fair-minded Malaysians, especially those who donated generously to Malaysiakini in the wake of the RM500,000 court fine.
The police will have a tough task of convincing the public they have not been unduly influenced to conduct an investigation purely on the basis of two police reports against Santiago and Gan. Do the police open investigation files on every report lodged by an NGO?
I don't know what Santiago and Gan said that upset anyone, but it is reasonable for the public to react to a court decision. Did we not hear former Prime Minister Najib Razak say some negative things after his conviction not long ago? Was any police report filed? I hope not because anyone who is aggrieved by a court decision is naturally expected to say something.
Fair comment on what is perceived as an unfair judgment is hardly what sedition or the multimedia law is about, and the investigation against Gan and Santiago ought not to have begun.
Court decisions are not above criticism. Our entire court system is built around the principle of justice and accountability through an adversarial approach, and you can't get justice without differing...
COMMENT | Here we go again. The unfair persecution and unnecessary waste of police time. Something is seriously wrong.
The police investigation into DAP member of parliament Charles Santiago and Malaysiakini co-founder and chief editor Steven Gan is nothing more than a futile witch-hunt. That will be in the minds of most fair-minded Malaysians, especially those who donated generously to Malaysiakini in the wake of the RM500,000 court fine.
The police will have a tough task of convincing the public they have not been unduly influenced to conduct an investigation purely on the basis of two police reports against Santiago and Gan. Do the police open investigation files on every report lodged by an NGO?
I don't know what Santiago and Gan said that upset anyone, but it is reasonable for the public to react to a court decision. Did we not hear former Prime Minister Najib Razak say some negative things after his conviction not long ago? Was any police report filed? I hope not because anyone who is aggrieved by a court decision is naturally expected to say something.
Fair comment on what is perceived as an unfair judgment is hardly what sedition or the multimedia law is about, and the investigation against Gan and Santiago ought not to have begun.
Court decisions are not above criticism. Our entire court system is built around the principle of justice and accountability through an adversarial approach, and you can't get justice without differing arguments.
Hence, the progression of a case from the lower court to a higher court, dealing with criticisms and counter-criticisms. Often, we hear of judges giving dissenting opinions and even criticism of another or a lower court's judgment.
Criticism is an integral part of the court process, of life itself, and how unnatural and unfair if court decisions are made above the law and any comment on them made illegal.
The police investigation in this particular case may unwittingly convey the wrong message. Instead, they ought to be investigating why the court order to stop the deportation of some 1,000 Burmese was ignored.
Ignoring a court order is the real act of sedition. It undermines the rule of law. It is an abuse of power by the executive. Parliament, when it reboots, must have some serious questions for the Perikatan Nasional (PN) government.
The police have to explain why they think Santiago and Gan have given them ample grounds to launch an investigation. Otherwise, they are better off going after real criminals instead of being distracted unnecessarily.
Democracy is about accountability. In every democracy, judges expect the public not to agree with every decision they make. They expect criticism, sometimes not only from the public but the executive and parliament and higher court judges. It is therefore onerous on judges to make sound decisions that speak for them as they cannot resort to the media.
As the other two arms of the law - the executive and legislative - are checked by the courts, so conversely the third arm of governance, the courts are to be checked by them. So, if the courts give bad judgments, Parliament will enact clearer laws or amendments that will not give the courts leeway for misconstruction and misjudgment.
If the one who holds the highest office in the nation is subject to criticism, why should not anyone, including judges?
Judges are not politicians
However, judges are not politicians. Their authority and credibility are integral to the judicial process. You can poke fun at politicians but not judges or face a contempt of court charge. Judges survive on public confidence.
A contempt of court charge is serious and it usually involves instances of scandalising the judges and committing sub judice.
In Australia, three government ministers in 2017 were taken to task and the opposition insisted they resign for criticising certain judges. But in the end, nothing came out of it when they withdrew their comments and apologised.
Then Australian prime minister, a lawyer himself, said, "In a free society, a person is entitled to criticise the conduct of the courts or of a judge."
While in Australia, scandalising a judge may attract a punishment, it has now been abolished in the United Kingdom. In the English tradition, people are free to criticise the courts as long as their comments are made in good faith. In a House of Lords case dating back to the 1930s, Lord Atkin said:
"No wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice...
“Provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely expressing a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune.
“Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men."
In the 1960s, Lord Denning - described as the "best-known and best-loved judge of this, or perhaps any, generation" - stated:
"It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest.
“Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not.
“All we would ask is that ... those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication."
In a 2002 speech, former chief justice of the High Court of Australia Anthony Mason suggested that:
"Recognising the strong public interest in free discussion of the matter of public importance, the courts have been increasingly reluctant to use the contempt power simply to protect judges from criticism.
“Statements criticising judges for their decisions do not attract an exercise of the contempt power, at least when the criticism is fair and honest."
Should it be different in Malaysia that draws its legal traditions from the same source? Santiago and Gan have no case to answer, so say those judges, who know better.
STEVE OH is an author and composer of the novel and musical Tiger King of the Golden Jungle. He believes good governance and an engaging civil society are paramount to Malaysia being a unique and successful nation.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.
