KUALA LUMPUR – November 1, 2017: Several lawyers have argued that it is not subjudice for Malaysians linked to a defamation suit against Sarawak Report editor Clare Rewcastle-Brown to talk about the case for now.
Their argument is based on the elementary fact that the suit was filed in a British court, which simply has no power to penalise anyone in Malaysia.
According to Zaki Azmi, it was thus strange that former Bar Council president Datuk Ambiga Sreenevasan should cite subjudice as the reason for keeping mum when asked to react to her name being mentioned by the editor as the source for an article she had written at her news portal.
The article — which is why the suit was filed by PAS president Datuk Seri Hadi Awang — against the editor — alleged that senior PAS leaders were bribed by Prime Minister Datuk Seri Najib Razak.
“It’s odd that she (Ambiga) deemed it subjudice for her to deny or confirm Clare’s claim, given the fact that she is not bound by British laws and the ethics of the legal professions over there.
“The way I see it, those in Malaysia are free to openly discuss the case until, if and only if, Hadi decides to transfer the case to a Malaysian court,” said Zaki.
Subjudice is a legal term used to describe a case that is still under judicial consideration. In Malaysia making certain statements while a case is still being heard is subjudice and also in contempt of court.
Where Zaki was unsure of Ambiga’s motive for citing subjudice, another lawyer, Aidil Khalid, argued that such a reason was a mere red-herring meant to silence others from discussing the lawsuit.
“It’s her attempt in wiggling her way out from confirming or denying what Rewcastle-Brown had claimed in her statement of defence,” Aidil claimed.
He thinks that should Ambiga utter a self-incriminating response over Rewcastle-Brown’s claim, she could also be sued by Hadi in a Malaysian court.
Ambiga once said that public comments on matters of public interest cannot be subjudice or contempt
According to Aidil, it was hypocritical of Ambiga to invoke the doctrine of subjudice in order to shield herself from public scrutiny.
“When she was the president of the Bar Council, Ambiga had always taken the position that the rule on subjudice should not override the right to discuss matters of public importance,” he recalled.
Ambiga had in 2007 said that public comments on matters of public interest cannot be subjudice or contempt.
She was commenting on a report against the Bar Council, non-governmental organisations and several individuals for allegedly making prejudicial and contemptuous comments against a case which was pending in the Federal Court.
Concurring that it is not subjudice for Malaysians to discuss the lawsuit, lawyer Fatihah Jamhari supported Aidil’s view on Ambiga’s apparent hypocrisy.
Quoting a ruling from High Court Judge S. Nantha Balan concerning the doctrine of subjudice, Fatihah said the element of public interest over Ambiga’s link to the Hadi suit outweighs any arguments on subjudice.
“Debates on important public issues such as this should not be stifled and sacrificed on the altar of subjudice.
“If you are calling for freedom of speech, then you cannot use it only when it suits you. Ethics and morality are constant,” Fatihah pointed out.