The Malaysian Bar - Press Release: Government’s respect for the constitutional right of freedom of assembly is welcomed

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Press Release: Government’s respect for the constitutional right of freedom of assembly is welcomed

Friday, 06 January 2012 04:29pm

The Malaysian Bar welcomes the recent announcement, by the Minister of Home Affairs and the Inspector General of Police, that the Government will allow and facilitate the proposed assembly on 9 January 2012 in connection with the decision of the trial for sodomy of Dato’ Seri Anwar Ibrahim. Today’s statement by the Kuala Lumpur police chief that the proposed gathering can be held at the car park of the Kuala Lumpur Court Complex is also commendable.

This approach reflects a positive change in the mindset of the Government, and is an outlook that the Malaysian Bar hopes will continue and be expanded further. It is crucial that the Government learns from its past mistakes in responding to public assemblies, and clearly acknowledges that the rakyat’s desire to exercise the fundamental freedom of assembly guaranteed under the Federal Constitution must be recognised and respected.

The announcements reflect a correct understanding of the law – that protesting against a court decision, in itself, is not wrong, nor tantamount to contempt of court. Subject to a restriction described below, assembling in anticipation of a court decision is also not wrong. In other words, the courts themselves do not prohibit expression of discontent or objection against their decisions.

As Lord Atkin so eloquently said in Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322, at page 355:

… whether the authority and position of an individual judge, or the due administration of justice, is concerned, 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. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising 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.

Hence, where criticism against a court decision is malicious, ascribes improper motive or impairs the administration of justice, then it may amount to contempt of court for scandalising the court. However, courts these days rarely, if ever, wield their powers in this manner, for the simple reason that they recognise the need for freedom of expression and that upholding such freedom serves the greater good.

In respect of the argument that a rally may constitute undue and illegal pressure on the Judiciary, professional judges – who decide on law and facts, as opposed to a jury system – must not be influenced by any external pressure, whether by way of demonstration, executive influence or criticism, when discharging their judicial duty. The Malaysian Bar is confident that our Judiciary will remain steadfast, and be indifferent to the proposed public gathering.

In Attorney-General v Times Newspapers Ltd [1974] AC 273, at page 301, Lord Reid examined the pressure that publication of comments of court decisions may impose on the Judiciary and said:

But I must add to prevent misunderstanding that comment where a case is under appeal is a very different matter. For one thing it is scarcely possible to imagine a case where comment could influence judges in the Court of Appeal or noble and learned Lords in this House. And it would be wrong and contrary to existing practice to limit proper criticism of judgments already given but under appeal.

The Malaysian Bar therefore calls on the Government, police and other law enforcement agencies to work together with the organisers of any proposed assemblies on 9 January 2012, to ensure that the rakyat’s constitutional right to peaceful assembly will be honoured, protected and upheld.

Lim Chee Wee

President

Malaysian Bar

6 January 2012

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