Sunday, November 8, 2015

Gross travesty of justice in Malaysia by the police


The Law of Contempt is it being stretched too far by the Police?
 Phil Robertson with Human Rights Watch that  the death of human rights and freedom of expression in Malaysia.
Amid Umno's jubilant greeting over the retention of the Sedition Act 1948, former party president and prime minister Tun Abdullah Ahmad Badawi warned that the law should not be abused to help the party stay in power.  "Umno's power and strength comes from the people's support. Remember, if the people no longer support us, there is no law on God's earth that can save Umno from losing power," Abdullah said.
 A student from the University of Malaya displays a placard during a rally against the sedition law at their main campus in Kuala Lumpur on 10 September 2014
 where did this  Prime Minister authority and dignity of come from? In England, it came from the king who, in earlier times, would decide cases himself. It was only subsequently that the government function was delegated to Prime Minister . Thus in a monarchy the Prime Minister  really exercises the delegated functions of the king, and for this he requires dignity and majesty as a king must have to get obedience from his subjects.  a democracy there is no need for Najib to vindicate his authority or display majesty or pomp. His authority will come from the public confidence, and this, in turn, will be an outcome of their own conduct, their integrity, impartiality, learning, and simplicity.
NAJIB has primarily used against opposition politicians but in recent months have included journalists, students and academics.prior to the last general election, Prime Minister Najib Razak announced that he would repeal the Sedition Act in July 2012 because it "represents a bygone era" and was part of his reforms to develop Malaysia into a progressive democracy,.Now Mr Najib has announced at his annual party convention that the law will be retained without explaining why he changed his mind.

 Najib prefers to humiliate Mahathir by sending in the police.

Criminal defamation law  being stretched too far by the Police that use the police and the state to coerce and stop citizens from speaking up are outdated and should be repealed.
For the first time in our history, the police commenced investigation on a 90-year-old former prime minister, Dr Mahathir Mohamad presumably for criminal defamation.created by the colonial masters to instill fear on the populace .The United Nations’ Special Rapporteur on freedom of expression, the Human Rights Committee of the International Covenant on Civil and Political Rights and other international bodies have all called for the abolition of criminal defamation.


Contempt law threatens freedom of speech:

In a recent judgment, a bench of the Indian Supreme Courtconvicted a Kerala ex-MLA for contempt of court for calling some judges fools, and sentenced him to four weeks imprisonment.

In my opinion this judgment is incorrect, totally unacceptable in a democracy, and violates the freedom of speech guaranteed by Article 19(1)(a) of the Constitution of India.

The Law of Contempt is it being stretched too far by the Police?
In a democracy, the purpose of the contempt power can only be to enable the court to function. The power is not to prevent the master (the people) from criticising the servant (the Prime Minister  ) if the latter does not function properly or commits misconduct. the Constitution gives the right of freedom of speech and expression to all citizens. Once it is accepted that Malaysia is a democracy and that the people are supreme, the reconciliation can only be affected by treating the right of the citizens to free speech and expression under Article The test to determine whether an act amounts to contempt of court or not is this: does it make the functioning of the judges impossible or extremely difficult? If it does not, then it does not amount to contempt of court even if it is harsh criticism.
Much of our contempt law is a hangover from British rule. But under British rule the offence of scandalising the court Prime Minister is a mercurial jurisdiction in which there are no rules and no constraints.

 and others are perfectly correct in saying there should be certainty in the law, and not uncertainty. After all, the citizen should know where he or she stands. There are two reasons for the uncertainty in the law of contempt of court. In the Contempt of Courts Act, 1952, there was no definition of `contempt.' Secondly, even when a definition was introduced by the Contempt of Courts Act, 1971 (vide Section 2), there was no definition of what constitutes scandalising the court, or what prejudices, or interferes with, the course of justice. What could be regarded as scandalous earlier may not be regarded as scandalous today and what could earlier be regarded as prejudicing or interfering with the course of justice may not be so regarded today.



 mental torture is such a terrible thing that one will confess to anything under torture.

Katju said after carefully studying the judgment of the court he finds that the evidence on which Memon has been found guilty is "very weak
"This evidence is retracted confession of the co-accused and alleged recoveries," he said. 

Regarding retracted confessions, he said that "everyone knows how confessions are obtained by the police in our country by torture." 

Justice (retd) Katju further said that torture is such a terrible thing that one will confess to anything under torture.

"Joan of Arc confessed to be a witch under torture. Moreover, in Yakub Memon's case the confession was retracted," he said. Regarding recoveries, he said anyone having knowledge of working of police knows that such alleged recoveries are often planted torture is such a terrible thing that one will confess to anything under torture.



The view expressed above is, in fact, accepted now even in England. As observed by Lord Salmon in AG vs. BBB: "The description `Contempt of Court' no doubt has a historical basis, but it is nonetheless misleading. Its object is not to protect the dignity of the Courts but to protect the administration of justice."
As observed by Lord Denning in R vs. Commissioner of Police (1968): "Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself."
The best shield and armour of a judge is his reputation of integrity, impartiality, and learning. An upright judge will hardly ever need to use the contempt power in his judicial career. I submit that the law of contempt of court can be made certain once it is accepted that the purpose of the contempt power is not to vindicate or uphold the majesty and dignity of the court (for it is automatically vindicated and upheld by the proper conduct of the judge, not by threats of using the contempt power) but only to enable the court to function. The contempt power should only be used in a rare and exceptional situations where, without using it, it becomes impossible or extremely difficult for the court to function. In such situations, the contempt power should not be used if a mere threat to use it suffices.
There may, of course, be differences of opinion about what acts prevent, or make very difficult, the functioning of a judge. For instance, do comments by the public (including lawyers, journalists, etc.), or publicity in the media about a pending case cause this? I think not. A judge should have the equanimity and inner strength to remain unperturbed and unruffled in any situation.
The expression `preventing or making it extremely difficult for the judge to function' should ordinarily be understood with reference to a judge who has a true judge's temperament one that is detached, calm, with equanimity, and with broad enough shoulders to shrug off baseless criticism or attempts to influence him without being perturbed.
A fresh, modern, democratic approach, like that in England, the United States, and Commonwealth countries, is now required in India to do away with the old anachronistic view. Contempt jurisdiction is now very sparingly exercised in these western countries. Thus in Defence Secretary v. Guardian Newspapers (1985) 1 A.C. 339 (347), Lord Diplock observed that "the species of contempt which consists of `scandalising the judges' is virtually obsolescent in England and may be ignored."
Moreover, it must always be remembered that contempt jurisdiction is discretionary jurisdiction. A judge is not bound to take action for contempt even if contempt has, in fact, been committed.
Before concluding, I may refer to the book Judges by David Pannick in which he states:
"Some politicians, and a few jurists, urge that it is unwise or even dangerous to tell the truth about the judiciary. Judge Jerome Frank of the US Court of Appeals sensibly explained that he had little patience with, or respect for, that suggestion. I am unable to conceive ... that, in a democracy, it can never be wise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions... The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts."
In this connection reference may be made to the recent amendment to the Contempt of Courts Act (the Contempt of Courts Amendment Act, 2006), which has introduced a new Section 13(b) that states: "The courts may permit, in any proceedings for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide."
Thus, truth is now a defence in contempt of court proceedings if it is in the public interest and is bona fide. This amendment is in the right direction, and was long overdue.


In a democracy the people are supreme and all authorities, whether President or Prime Minister of India, other ministers, judges, legislators, bureaucrats, police, army and so on are servants of the people. Since the people are the masters and judges their servants, the people have a right to criticise judges just as a master has the right to criticise his servant.
Why should Indian judges be so touchy? When the House of Lords delivered the judgment in the 1987 Spycatcher case, a prominent newspaper published as its headline "You Fools".
Fali Nariman, the eminent Indian lawyer, was in London at that time and he asked Lord Templeman who had delivered the majority judgment why the judges did not take action for contempt of court. Lord Templeman smiled, and said that judges in England do not take notice of such comments. In Balogh vs Crown Court, a case contested in England in 1975, the defendant told the judge "You are a humourless automaton. Why don't you self destruct?" The judge smiled, but took no action.
In my opinion the Supreme Court judges, before convicting the former Kerala MLA, should have reminded themselves of the following words of the celebrated Lord Denning in R vs Police Commissioner (1968): "Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself."
A basic defect in the law of contempt of court in India is that it is uncertain. Nariman described it as "dog's law". The British jurist Bentham said that when a dog does something nasty you beat it. Similarly, the law of contempt of court is known only when someone is punished, and thus it is a standing threat to freedom of speech.
We may consider an example. In Duda's case (1988) the facts were that a Union cabinet minister had said that the Supreme Court sympathised with zamindars and bank magnates. He further said "FERA violators, bride burners, and a whole horde of reactionaries have found their haven in the Supreme Court" and that Supreme Court judges have "unconcealed sympathy for haves".
A contempt of court petition was filed against the minister but no action was taken by the Supreme Court. Nariman wondered whether, if the statement was made by a common man and not a minister, that person would have gone unpunished.
But in the case against EMS Namboodiripad, former chief minister of Kerala, he was convicted for contempt of court for saying that courts were biased in favour of the rich, which is practically the same thing that was said by the Union minister in Duda's case.Where then is the certainty and consistency in the law of contempt of court? Is it not "dog's law" as Bentham called it?
Moreover, it is settled law that contempt jurisdiction is discretionary jurisdiction. In other words, a judge is not bound to take action even if contempt of court has indeed been committed. Personally in my 20 years' career as a judge I dismissed perhaps 99% of contempt petitions, saying I was not inclined to take any action.
I remember once when I was sitting in my chamber at lunchtime in the Madras High Court, two senior judges came to meet me looking very upset. It appeared that a leaflet had been circulated against them calling them fools.
On reading the leaflet i started laughing. At this they got even more upset, and said to me, "Chief, we have been defamed, and you are laughing." I replied, "Look, you better learn how to ignore all this, or you will get blood pressure. So many things are said in a democracy and you must develop a thick skin, as these are occupational hazards."
At this the judges tore up the leaflet and also started laughing.

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