The recent publication of former Attorney-General, Tan Sri Tommy Thomas’s memoir, “My Story: Justice in the Wilderness”, has been met with much public furore and controversy. While the Malaysian Bar completely supports one’s freedom of speech, expression and right to form opinions, we take the view that such freedom must be balanced with public interest and the administration of justice.
There are a number of claims raised against the contents of the book for being contemptuous of ongoing court proceedings, the details and merits of which we will not delve into. We must ensure that any opinions on cases which are under judicial consideration do not unfairly prejudice the accused or any party. Any publication regarding such matters must not create a substantial risk that may prejudice the integrity of the case as well as the administration of justice. All comments that are made must be done in good faith.
As a society, we have adopted a liberal atmosphere and mindset towards comments in court cases that are largely attributed to a well-educated and informed public, the abolition of juries, and the existence of professionally trained judges who are well trained to handle matters despite widespread media coverage. Nevertheless, the test of whether there is a real risk of prejudice to a fair trial is still a rigid one and must be adhered to.
One’s freedom of speech and expression is of paramount importance: it is enshrined in Article 10 of the Federal Constitution. Such a fundamental right forms part of the bedrock of a modern democratic society. However, the Malaysian Bar takes the view that we should not let one’s comments or freedom of expression stray into a territory that could cause or be reasonably foreseen to cause prejudice to adjudicative proceedings. There is a fine but important line between commenting on cases and improperly influencing them. It must be recognised that freedom of speech and expression is a fundamental right, however one must not forget that the rule of law demands that everyone be entitled to a fair trial. It is crucial to balance these two concepts in order to ensure the proper administration of justice.
In the English House of Lords’ decision of Attorney General v Times Newspapers Ltd1, Lord Reid succinctly explained: “Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice.” With the flurry of spontaneous comments and opinions that are filling social media platforms with regard to ongoing trials and appeals, the public may not fully comprehend where such a line is drawn. Such public comments would likely interfere with the fair and impartial disposal of a case in a court of law. The Malaysian Bar therefore reiterates its calls on the Government to codify the law on sub judice comments and contempt of court, and to provide a clear and unequivocal definition of these legal concepts.
The Malaysian Bar stands by the fact that the rule of law must be upheld in all circumstances. There must be a balance struck between the freedom of expression and the administration of justice.
6 February 2021
1  AC 273.