"What the eyes see and the ears hear, the mind believes" – Harry Houdini

 

COMMENT It can be safely said that the case of Anwar Ibrahim has manifested a clear divide – supporters of the conviction and sympathisers for the convicted.  

A division, albeit in a different context, but a division no less, has now permeated within the legal profession.  This division appears to have drawn life from the press release issued by the president of the Malaysian Bar Christopher Leong (right) on Feb 11, 2015. 

 

Some members of the Malaysian Bar, totalling 100 or so (not quite the 300 Spartans of Thermopylae at this juncture) took offence as to the contents of the press release.  

They galvanised themselves and issued a petition urging the retraction of the press statement and the tendering of an unequivocal and unconditional public apology to the judiciary, failing which, they demand the resignation of the president of the Malaysian Bar.  

The main plank of their grievance or dissatisfaction appears grounded on the contention that the press release is a broadside launched at the judiciary. Consequently, their arguments go, the administration of justice has been brought into disrepute. Many choice phrases have also been deployed to sustain their allegations.

 

Consistent with the division alluded to above, other members of the Malaysian Bar have risen to the defence of the press release. These have also been carried in the various media.

 

The stage is set. It appears that the Malaysian Bar is on a collision course with the judiciary, no thanks to the press release. But is this really the case?

Misdirection

 

We have read the press release and re-read it, many times over. Nowhere was the judiciary attacked in the press release in the manner sought to be contended by the 100 or so. This is despite the eloquence of language deployed by them.

 

From the contents of the press release, the phrase "…persecuted, and not prosecuted" appears to have been given some prominence by the 100 or so lawyers.  

As lawyers would appreciate, nit-picking on certain words without regard to the entirety of contents and context do not necessarily give rise to the true and proper meaning of the words sought to be emphasised.  

It may, however, give rise to a desired construction and meaning the writer or speaker seeks to be impressed upon. Likewise, a desired construction and meaning do not always go hand-in-hand with the true and proper meaning of words.  

If the aim or objective is such that desirability and nothing else should take precedence, pitfalls abound. Just like the notion of misdirection.

The question that arises is, why would anyone, let alone the 100 or so lawyers, desire a certain interpretation to be given to the press release which we believe is different from the clear and plain meaning of the actual words employed in the press release?

We have taken the liberty to reproduce the impugned sentence of the press release. It reads as follows:

 

"These glaring anomalies fuel a perception that Dato’ Seri Anwar Ibrahim (above) has been persecuted, and not prosecuted."

Criticism on prosecution, not judiciary

 

It bears repetition that the said sentence must be read in the light of the full content and context of the press release.  

That very sentence expresses a view within the content and context of prosecutorial discretion, given the charges preferred against the then accused. No more, no less.  

To equate criticism of the prosecutorial discretion with that of unfounded criticism of the judiciary, or that our judiciary acts in collusion with the executive branch of our nation to persecute, is in our respectful view to do violence to plain language.

 

In the same vein, could it be argued that another sentence in the press release be credibly contended as to amount to an unwarranted attack on the judiciary? That sentence reads as follows:

 

"The hearing of Dato’ Seri Anwar Ibrahim’s appeal was extensively reported in the media, and thus the decision of the Federal Court has come as a surprise to many."

 

Let us consider that statement in the press release. 

The appeal before the Federal Court was extensively reported in the media, both print and electronic. The arguments canvassed for and against were widely and extensively reported.

Given the clear divide the case attracted, the decision did come as a surprise to many. Again, to equate that sentence as amounting to an unwarranted attack on the Judiciary is simply mind-boggling. Horrifying even.

Why forego the disclaimer?

 

It is pertinent to note that in the foregoing sentences of the press release, it was made unequivocally clear that, “The Malaysian Bar has not yet had the opportunity to peruse the extensive written grounds of judgment of the Federal Court, and makes no comment at present as to the grounds for the affirmation by the Federal Court of the conviction and sentence of Dato’ Seri Anwar Ibrahim, save to say that in a criminal trial and any appeals arising therefrom, the accused need only raise a reasonable doubt in the prosecution’s case.

"Where there is any such reasonable doubt, the accused must be acquitted."

 

The foregoing quoted sentences made it abundantly clear that the press release had studiously avoided any comment as to the grounds of judgment. This is perfectly understandable, as the extensive grounds had yet to be perused.

 

With this as the background, the 100 or so lawyers (left) remarkably chose to say that "he (the president of the Malaysian Bar) makes disparaging remarks that the judgment of the Federal Court was without any basis in law, by reference to the media reports of the trial, solely."

They go on to say that the president of the Malaysian Bar "has brought the judiciary... into public contempt and ridicule by misrepresenting both facts and the law applicable in Anwar’s sodomy trial and conviction by the Federal Court."

 

This is further compounded by an article by one of the 100 or so lawyers that was published in what appears to be a response to several articles and statements that were issued in support of the press release.  

The article ends with the reiteration of the urging made earlier by the 100 or so lawyers for the retraction of the press release and for an unreserved apology to the judiciary.

In that article, it is said that not since 1988 "has an attack on our judiciary been so severe". It is also said that the president of the Bar "has implicated the entire legal profession in his dastardly attempt to discredit our judicial system" and has scandalised the judiciary " in the name of the Malaysian Bar".

 

Really? Did the press release say "that the Federal Court Judgment was without basis"? Did the press release "discredit our judicial system" or "scandalise the judiciary" or "bring the judiciary into public contempt and ridicule"?

 

We think not.  

Instigating a Bar-judiciary collision

 

We, the undersigned, however, are very concerned that the serious allegations mounted against the press release and the president of the Malaysian Bar, can lead some to believe that the Malaysian Bar and the judiciary are on a collision course or even actually lead to such a course.

 

A collision course is not something which is desired. At times, in appropriate circumstances, it is inevitable.

The dark episode of 1988 is one such example which springs to mind. The Malaysian Bar rose to the occasion then, justifiably we may add.

What members of the Malaysian Bar, especially us, do not wish upon ourselves is for such a collision is caused by a misreading or worse, a misdirection of the press release.

 

Fortunately, in the realm of public opinion, freedom of expression within reason is a still a wonderful thing.

 

We are ever mindful of the Sedition Act, you know.  

 

Ultimately, you get to make up your own mind as to what your opinion should be.  We have. 

 

And as members of the Malaysian Bar, we wait with bated breath should the issue raised by the 100 or so be ventilated at the upcoming Annual General Meeting of the Malaysian Bar this March 14, 2015.

 

"I know of only one authority which might justify the suggested method of construction: 'When I use a word,' Humpty Dumpty said in a rather scornful tone, 'it means just what I choose it to mean, neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is the master – that’s all'."

(per Lord Atkin in Liversidge v Sir John Anderson).

ALEX DE SILVA, AMRIT PAL SINGH, ANDREW CHIEW, CHEOW WEE, FAHRI AZZAT, GOPI SESHADARI, JAMES KHONG, ROBERT LOW, SEAN YEOW and SIVANEINDIREN SELVANANDAM are members of the Malaysian Bar.