Kasi Arunachalam Chettiar
c/o C-13-11, Megan Avenue II, No. 12, Jalan Yap Kwan Seng,
50450 Kuala Lumpur, Malaysia. Fax: +6 03-2181 4270
17th April 2019
OPEN LETTER
YAB Tun Dr. Mahathir bin Mohamad
The Right Hon. Prime Minister of Malaysia
Putrajaya.
YAB Tun,
Re: Justice for my son, lawyer Arun Kasi
Federal Court’s Refusal to Release Open Court CRT Recording in Contempt Case
CRT Recording be made available to my Son and be Played in Parliament
Federal Court Application No. 08(1)-394-07/2018(W)
1.I am a Malaysian aged 78 and father of lawyer Arun Kasi.
2.With respect to the judiciary, it is no secret that Government had complaints over the judiciary under the conditions implanted by the previous government. Even before coming into power, it was PH’s manifesto to “restore public trust in the judicial and legal institutions”. Media was filled with articles criticising and condemning judiciary. Police and MACC complaints were lodged over alleged judicial misconducts and they were investigating, as appearing in media. The then CJ publicly announced internal investigations into alleged judicial misconducts. One suit was filed against the then CJ for failing to defend the judiciary. Bar Council asked, 4 times, for RCI. Justice Hamid Sultan affirmed an affidavit (“Affidavit”) exposing various alleged judicial improprieties. The Government announced RCI upon the Affidavit.
3.The AG himself outright scandalised the entire judiciary in his bold speech at the Legal Year Opening in Jan 2019 in the presence of many judges including the then CJ, lawyers, etc. where he expressly said:
The administration of justice has not been immune from the cancer of corruption which spread in the conditions created by the former government. The scandals that involved judges, lawyers, prosecutors and litigants for at least 3 decades since the Judicial Crisis of 1988 are too well known …
4.In this climate, my son criticised a Federal Court decision in PCP Construction v Leap Modulation, Intervener AIAC (“Impugned Decision”) and reported the alleged irregularities to MACC, which appeared in media. My son had no personal interest in the case. He was not a party or counsel in this case.
5.The AG claimed, contradicting his own faith expressed in the speech, that my son had insinuated that the judges were corrupt and cited my son for contempt and asks to send my son to prison. If the AG believes any person to be in contempt, then it must first be himself for the outright speech. Is he not applying the rule of law to himself?
6.This species of contempt, called ‘scandalising courts’ had become obsolete and even abolished in civilised countries as being contrary to freedom of speech. In UK, it was so abolished by s. 33 of Crime and Courts Act 2013.
7.Prior to the media coverage of my son’s criticism, the Impugned Decision was already severally criticised in the Affidavit and as such is likely the subject matter of RCI. Is the AG pre-empting the RCI with the contempt proceedings?
8.The Government announced RCI upon the Affidavit and asked the AG to draft the terms of reference. In conflict, the AG applied to expunge the Affidavit. The AG, during my son’s contempt hearing, described the Affidavit as “notorious”. No moment in RCI establishment for more than 50 days and Bar Council expressed concern over the delay. Is the AG acting on a frolic of his own contrary to the government direction?
9.The conflicting stands taken by the AG is a matter that YAB Tun has to cause probe in national interest.
10.The AG conducted the proceedings in such a way that my son was so time-pressed that he had no fair opportunity to defend.
11.The AG filed the application for leave on 26th Feb 2019 at 6.39 p.m. The AG got it instantly heard ex parte the next morning and it was granted. No Certificate of Urgency or any form of written request is seen from the publicly available e-filing system records. The AG must explain how he secured the date?
12.The AG served the cause papers on my son on 1st March 2019. My son applied to set aside the leave on 7th March 2019, which was short fixed on 13th March 2019. My son asked for adjournment of the hearing to properly prepare for the argument. The AG refused to support the adjournment request, resulting in it being disallowed. The Court heard and dismissed the application on 13th March 2019, and quickly fixed hearing of the AG’s substantive application to commit my son on 28th March 2019.
13.My son made another application to cross-examine the AG on 20th March 2019 which was also quickly fixed for hearing on 28th March 2019.
14.On 28th March 2019, my son’s only child aged 15 was hospitalised in serious condition. She was admitted since 12th March 2019. She was suffering threatening health condition since Jan 2019 and had been numerous times hospitalised since then. My son’s request for adjournment on this ground, which had affected his ability to properly prepare for the defence, at the hearing on 28th March 2019 was vigorously opposed by the AG and disallowed.
15.My son’s application to cross-examine the AG was accordingly heard and dismissed on 28th March 2019. Then the substantive application of the AG to commit my son was heard. My son gave oral evidence. Malaysiakini reported that my son was “booted from witness stand” whilst giving evidence. The AG, who claimed himself to be the ‘fountain of justice’, took no effort to address this.
16.Within 28 days, from 1st March to 28th March, 2 interlocutory applications of my son were heard and dismissed and the substantive application of the AG to commit was heard and decision reserved on 23rd April 2019. Hardly any counsel will accept the brief and be properly able to argue in the short intervals within which the AG secured the hearing dates, more so this case being before the highest court at the first instance.
17.Even a murderer, robber or rapist will be given fair opportunity to defend and reasonable time for his counsel to prepare, but the AG did not allow that to my son.
18.The AG initiated the contempt proceedings straight before the Federal Court depriving my son of right of appeals. The AG affirmed the affidavit and personally conducted the hearing, but without ensuring fair opportunity to defend for my son.
19.My son’s law practice was abruptly disturbed by the conduct of the AG and is nearly finished off, with clients taking away files at Federal Court and other courts. .The proceedings had severally damaged the entire family, particularly my son’s only child reading law at the age of 15.
20.The AG put himself in conflict in the prosecuting my son. The subject matter of my son’s criticism involved AIAC, which is an institution within the purview of the AG. The AG appointed the current acting director of the AIAC vouching for him. The current acting director was the counsel, prior to the appointment, who moved the Court for the Impugned Decision. The ex-director affirmed an affidavit claiming close friendship between the AG and the current acting director, who were once partners in a law firm for 18 years.
21.In all these circumstances, my son asked the Court for CRT recording of the proceedings, by 6 letters over 3 weeks, so that he could apply for review of the interlocutory decision(s). But the court refused without giving any reason. I believe there is no confidentiality in an open court proceedings. I also believe that contempt proceedings will deserve the highest degree of transparency because the court is both the alleged victim and judge of its own cause.
22.The AG was able to get and exhibit to his affidavit the notes of proceedings for the hearing when the Impugned Decision was made without even a request letter appearing in the publicly available e-filing system records. The AG must explain how he got the notes?
23.I want the Parliament to watch the CRT recording to see how the AG conducted the proceedings and applied the rule of law.
24.With due respect to the Court, I most humbly call upon the YAP Tun now to direct the AG to ask the Court for the CRT recording and hand it over to my son to enable him to make the review applications.
25.If that does not happen, I will have no alternative but to day-time fast before the Parliament until the CRT recording is made available to my son, by permission of the Hon. Speaker.
26.I have utmost faith in the God and YAB Tun and that justice will prevail.
Thank you, Tun.
Sincerely,
Kasi Arunachalam Chettiar
Copied to:
(1) Hon. Speaker of Dewan Rakyat, Parliament
(2)Hon. President of the Court of Appeal (as the acting Chief Justice)
(3)Hon. Minister in Prime Minister’s Department (Law)
(4)Hon. Chairman, SUHAKAM (Human Rights Commission of Malaysia)
(5)President, Bar Council
