Apr 11, 2010

Lawyers rebut Dr M, say ISA, contempt are different

KUALA LUMPUR, April 11 — Several lawyers have rebutted Tun Dr Mahathir Mohamad’s argument that equated contempt laws with the Internal Security Act (ISA) that provides detention without trial.

The former prime minister wrote in his blog yesterday that both laws represent excessive concentration of power, and accused lawyers who support the former but not the latter of practising double standards.

Bar Council vice-president Lim Chee Wee explained there here was a “world of difference” between the practice of contempt of court and the ISA.

“For contempt, the process involves the alleged contemnor being given the opportunity to appeal against the decision. Unlike ISA where the detainee is deprived of the right to defend himself against the accusations levelled against him.

“In other words, there is natural justice or right to be heard in contempt process and none in ISA.” he told The Malaysian Insider.

The former prime minister commented on contempt laws after his former political secretary, Matthias Chang, was charged with contempt by Justice Noor Azian Shaari on March 25 for failing to apologise to the court after an argument with the judge and a lawyer in his suit against American Express (Malaysia) Sdn Bhd.

The senior lawyer was sentenced to a month’s imprisonment from April 1, where he went on a hunger strike which ended on Friday.

“Clearly we are seeing double standards in the implementation of justice,” Dr Mahathir said when commenting on the silence over Chang’s imprisonment for contempt.

But Lim pointed out that Chang had refused his right to appeal the decision, and in so doing “(deprived) himself and the appellate court of the opportunity of correcting the alleged unjust decision”.

He added that equating contempt laws and the ISA demonstrated a “gross misunderstanding of the injustice of ISA” on the part of Dr Mahathir.

Penang Bar chairman Murelidaran Navaratnam was similarly concerned by the former prime minister’s attempt to draw parallels between contempt laws and the ISA.

“I can’t see how he can equate the two. One is detention without trial whatsoever whereas contempt is only after exhausting the hearing procedure.

“The two are not the same.”

Navaratnam explained, however, that there was room to improve the existing contempt laws to make them “tighter” and that the Bar Council would work towards improving the process.

Another lawyer, who asked not to be named, agreed that contempt laws were archaic but also stressed that the parameters were “very clear-cut”.

She contrasted this to the ISA which allows for an individual to be detained without trial based on the sentiments of the Home Minister.

She also emphasised the importance of the provision for contempt laws to the functioning of the court.

“Contempt laws are there to ensure proper procedure is being followed so that when both parties are presenting their case (they) keep to procedures as provided by law.”

Legal practitioner Phillip Koh commented along the same lines.

“(The court) must have some jurisdiction to control its proceedings and to command respect.”

He said that while such laws should not be abused, Dr Mahathir’s analogies were nonetheless not apropos, and criticised Mahathir for not understanding the judiciary.

“The former prime minister has never quite appreciated the workings of an independent judiciary.”

Bar Council president Ragunath Kesavan told The Malaysian Insider that the lawyers had pushed for qualification of contempt laws in 1998 after Zainur Zakaria was charged with contempt by Justice Augustine Paul during Datuk Seri Anwar Ibrahim’s first sodomy trial.

“The prime minister said there’s no need for any qualification of laws of contempt and, if I recall correctly, the prime minister at the time was Mahathir,” he said wryly.

“Mahathir was not receptive at all.”

Commenting specifically on the Chang case, Kesavan said the Bar Council will scrutinise a video recording of the actual incident released by the court in the next few days before releasing an official statement.

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