PUTRAJAYA: A lawyer was clearly referring to three Federal Court judges when he wrote two articles critical of a court proceeding last year, Attorney-General Tommy Thomas said in a contempt of court case.
Thomas said Arunachalam Kasi, better known as Arun Kasi, was repeatedly referring to “the court” in highlighting five anomalies said to have been committed by the apex court bench on Nov 7.
“A reading of both articles will show it was an attack on the judiciary. To say otherwise is an insult to the intelligence of readers,” he said in his submission before a five-member Federal Court bench chaired by Ramly Ali today.
By lodging a report with the Malaysian Anti-Corruption Commission (MACC), Thomas said, Arun was insinuating that the judges were corrupt.
Thomas said it was definitely misleading for Arun’s lawyer to claim that their client was referring to the other parties – Leap Modulation Sdn Bhd, PCP Construction Sdn Bhd, and Asian International Arbitration Centre (AIAC) Malaysia.
He said Arun could not be referring to the MACC either, where he had gone to lodge a complaint.
The articles, published on the Aliran website, were under the headlines “How a dissenting judgment sparked a major judicial crisis” on Feb 16 and “Tommy Thomas must look into arbitration centre that sparked the judicial crisis” on Feb 22.
A week later, Thomas obtained leave from the Federal Court to initiate contempt proceedings against Arun on the grounds that the articles had scandalised judges of the Federal Court.
Thomas said freedom of speech was not absolute and there were limitations, such as contempt of court.
“Nonetheless, litigants and the public are permitted to criticise judges and the court as justice is not a cloistered virtue,” he said.
However, he said, a balance must be struck between free speech and criticism as well as against contempt of court.
“In this case, we are of the view Arun’s articles were contemptuous,” he said, adding that the integrity of the judiciary must be protected rather than that of individual judges.
Thomas said there was no evidence that Arun had made an attempt to correct his articles which he claimed was edited by Aliran.
“He is claiming that Aliran sensationalised his articles but he did nothing to rectify them. He is now trying to pass the responsibility to Aliran,” he said.
Thomas said Arun was a stranger to claim the Federal Court proceeding was highly irregular.
He said the AIAC applied to become intervener as judge Hamid Sultan Abu Backer had attacked the organisation when it was not a party to an action between Leap Modulation and PCP Construction.
“The Federal Court was absolutely correct to allow the expungement as the judge had gone off tangent,” he said.
Lawyer Bastian Pius Vendargon said his client was inspired to write both articles as the Federal Court proceeding was irregular.
He said usually the apex court in civil cases would first hear a leave to appeal application.
“Only after leave was granted, parties can intervene to expunge parts of a judgment,” he said.
Vendargon said in this case intervention and expungement took place first followed by the leave application.
“Arun claimed this was unprecedented and in his articles, he only asked the MACC to investigate the parties (Leap Modulation and PCP Construction) and AIAC,” he said.
Bastian said Arun never asked the MACC to investigate the judge although he had filed a MACC report.
Co-counsel Mohamed Haniff Khatri Abdulla also questioned why neither Thomas nor his officers had appeared in the court to defend Hamid when AIAC made the expungement application.
“An affidavit was sent to the Attorney-General’s Chambers but neither he nor his officers turned up to represent Hamid,” he said.
Haniff said nothing in the articles insinuated that the three judges should be investigated by the MACC.
“This court must look into the procedural irregularity of the proceeding as the liberty of Arun could be affected (if found guilty of contempt),” he said.
The court will deliver its ruling on April 23.