Sub judice still relevant although jury trials no more
Published on: Sunday, January 19, 2020
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I REFER to the recent comments on the irrelevance of sub judice in Malaysia.

Sub judice is Latin for “under judicial consideration”. The Concise Dictionary Of Law describes the sub judice rule as “a rule limiting comment and disclosure relating to judicial proceedings, in order not to prejudge the issue or influence the jury”.

The rule is part of the law relating to contempt of court. It governs what public statements can be made about ongoing legal proceedings before the courts.

Lawyers will tell you that the sub judice rule seeks to safeguard the sanctity of court proceedings and to ensure that an accused gets a fair trial in a court of law.

Decisions of the courts should be free from irrelevant extraneous considerations and based purely on evidence brought before them.

Of common law origin, the sub judice rule has always been concerned with criminal trials since the ultimate decision-maker is the panel of jurors, which comprises laymen who are non-professionals.

Hence, there is danger of these laypersons who are untrained in law being exposed to unfair or prejudicial comments and statements, which might affect their minds in their deliberation of the case and ultimately the trial of the accused persons.

The days of jury trials in Malaysia are long gone, however, and criminal trials are now conducted by a judge sitting alone.

Witnesses would give evidence in court before the judge who would evaluate their credibility.

It is the judge who decides the case based on his/her evaluation of the witnesses’ evidence and documentary evidence. 

Therefore, the sub judice rule would be inapplicable due to the absence of jury trials.

Such arguments were strongly canvassed by none other than Attorney General Tan Sri Tommy Thomas himself and his team of prosecutors before the High Court judge in the SRC case.

The learned judge, however, would not be moved.

The learned judge said that even in the absence of jury trials, the due administration of justice could still be adversely affected if the media were unfettered to discuss matters and evaluate the evidence adduced in court in an ongoing trial and comment on the credibility of the testimony of witnesses, and to suggest what ought to be done by the prosecutors, counsel and the judge, even condemning them.

Such state of things should not be tolerated in any judicial jurisdiction.

Accordingly, the learned judge decided that the sub judice rule applied in Malaysia despite the absence of jury trials here.

On appeal to the Court of Appeal, this is what Judge of the Court of Appeal Zabariah Yusof, delivering the judgment of the court, said:

“We are in agreement with the learned (High Court) judge that the sub judice rule applies in this country despite the absence of jury trials nowadays.”

If Parliament were to amend the law, as suggested, Thomas would be the first to acknowledge that this would offend the doctrine of separation of powers, which has been affirmed to form part of the basic constitutional framework of the country.

Removing the sub judice rule would mean removing a judicial power to punish for contempt.

After the cases of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat (on April 20,2017, the Federal Court made a ruling on the nature and extent of the assessors’ role in deciding the amount of compensation for compulsory land acquisition cases. 

The decision was considered as a significant ruling on the judiciary’s role and powers in modern Malaysia) and Indira Ghandi (unilateral conversion of minors to Islam), who in the right frame of mind would want that?

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