100 Lawyers & The Judiciary

This article was published in The Malaysian Insider

I refer to the statement made by President of the Bar Council Christopher Leong, statement by Aidil Khalid & 99 other lawyers who supported it, and a slew of others who criticised Christopher for purportedly directly attacking “the Federal Court without any legal basis with the effect of bringing the Federal Court into disrepute and odium”.

I find it incredulous for Mr.Aidil and his other unnamed 99 fellow lawyers to make such accusations loudly. More so when the statement made by Christopher did not make any reference to the Judges nor did he comment on the decisions made.

If we read the statement in full, Christopher Leong merely questioned why Datuk Seri Anwar Ibrahim was not charged under section 377C of the Penal Code for forced sodomy or sodomy rape, and why the complainant, Mohd Saiful Bukhari Azlan, who was alleged to have been a participant in the act of sodomy, was not similarly charged for abetment under sections 377A and 377B, read together with section 109, of the Penal Code.

Criminal charges are framed by the Attorney General who forms part of the Executive/Government, not the Judiciary. This is a common knowledge even among law students. So where is it in Christopher's statement where he had allegedly attacked the Judiciary? Did these 100 lawyers read his statement properly?

The statement of the Bar Council President must be read in the context of the decision of the Attorney General in framing the charges against Datuk Seri Anwar Ibrahim. Nowhere in Christopher’s statement where he had claimed that the Federal Court had persecuted Datuk Seri Anwar Ibrahim nor that the court was complicit in any conspiracy or was bias in arriving at its judgment.

It is perplexing to say the least that other than Mr. Aidil who had obviously misread Christopher’s statement, the other 99 lawyers had also concurred with Aidil. Perhaps these lawyers who (I am very sure) all excels in speed reading should relook at Christopher’s statement before jumping the gun.

But this does lead us to an interesting question, even if one (be it lawyer or not) is to question the decision of the Judiciary, should it be seen as contempt against the Court?

Criticism of the Judiciary must be allowed.

Criticism on the reasoning of the Judiciary’s judgment cannot and must not be construed as an attack or seen as an act of disrepute against Judges. Decisions made by the Judges in reading, applying or even extending the interpretation of the law affects the public at large and not just Datuk Seri Anwar Ibrahim alone. What is applied and laid out as precedents in Federal Court cases will be used as benchmarks for litigators to argue their case for any members of the public.

In worst case scenarios, one wrong decision, or an erroneous reading or application of the law by the Judges in the Federal Court may even lead to injustice to parties in the case and anyone who has similar facts to the case precedents. As Judges in the Court of Appeal and below are bound to follow the precedents made by the Federal Court, if the lower Court Judges cannot distinguish the case, they will have to apply the precedents even if it is wrong.

Unless the bad precedents are reversed or rectified by the Parliament, it normally takes years of litigation and appeal by affected individuals just to get their case heard at the Federal Court to relook into its own precedents. As is in most cases, affected individuals who were wronged by bad precedents may not even have the time or resources to appeal their matter to the Federal Court.

Hence, if members of the public cannot criticize the decisions made by Judges, then how is it possible for us to keep Judges accountable to the decisions they make? Where will that leave the public if they were wronged by the decisions? Judges, as wise as they may be, are fallible human beings after all and the decisions they make affects the public directly. If every criticism of the Judiciary, however reasonable they are, is seen as contempt of the Court then we may end up having a tyrannical judiciary where wrong decisions are condoned instead with little or no recourse to the public.

Finally, for Aidil and the remaining unnamed 99 lawyers, here is my question to you: When you or your client is affected by the wrong decision of the Courts, and in no manner where anyone of you can question the decisions made by the Judges for fear of contempt. Where does that leave you?