When annoying someone is a crime

Thor Kah Hoong

Lawyers Surendra Ananth and Joanne Chua Tsu Fae during an interview with The Malaysian Insight recently. – The Malaysian Insight pic by Najjua Zulkefli, October 15, 2017.

THE Malaysian Insight talks law with two young lawyers who work pro bono (Latin for “for the public good”, or “for nothing” in plain English) as opposed to getting fat on corporate law practice. Meet Surendra Ananth, co-chair of the Bar committee on the Constitution, and Joanne Chua Tsu Fae.

TMI: Why law? Are there lawyers in your family?

Surendra: My grandfather and father heavily influenced my decision to do law, at first. I didn’t know what to do after my STPM. I could go to NUS (National University of Singapore) to do economics, but it would have been financially difficult, and I was accepted for law here in UKM (Universiti Kebangsaan Malaysia). Eventually, along the way, I fell in love with law.

Joanne: I am the first lawyer in my family. I was a precocious child, started speaking when I was 6 months old, so my mother knew I was going to be a lawyer. In school, we were given cards to list the three professions of our choice; even then I always wrote down “lawyer”.

Surendra: In the beginning, I didn’t like it. It was tough. Constitutional law was a first-year subject, and I became informed about local politics. The exposure to not just what was happening, but also what was not happening, should be happening, sparked an interest; I should be doing something about it. My lecturers were thought-provoking and encouraged me to take unconventional positions.

Joanne: I thought I would join an NGO, do social work. I never thought I would practice. But things happened… I started at Zaid Ibrahim’s firm, the largest corporate law firm in the country. They allowed me to take on side projects, so I helped Edmund Bon with stateless children, and I was on the urgent arrest team for Bersih.

I realised that was what I wanted to do, so I moved to Thomas Philips, and we did a lot of work with Gobind Singh Deo. So I joined him.

My first day with his firm, for my first case, I was given Teoh Beng Hock. I wanted cases like that, and I got it.

TMI: Shifting from the tragic to the ludicrous, can we have your response to a couple of acts of political theatre that were in the news recently, starting with the crime of deadly assault with balloons?

Joanne: The Minor Offences Act, under which Balqis was charged, is a very old act, that’s why the maximum sentence is RM100. The law is hardly ever used, but they were using it because they couldn’t find anything else to fit her offence.

Surendra: Sections 233 and 506, regarding insulting someone, are vague because the term “insult” is not defined.

Joanne: 233 covers online content…

Surendra: …under which a lot of people are being charged. You cannot criminalise the act of insulting someone. Defamation is available to pursue someone who has insulted you. To criminalise an insult is against the basic freedom of expression, more so when it pertains to government officials. A government official cannot sue unless it was a personal attack and not for things he did in his official capacity.

TMI: MACC getting upset over Lim Kit Siang linking them with monkeys.

Joanne: Section 233 is so vague, the threshold is so low. All you need to do to commit a crime is to “annoy” someone. Recently, a court in Kenya ruled that criminal defamation was unconstitutional. That is happening in an African country, but here in Malaysia, it is abused.

Surendra: Can the truth be considered an insult? (Laughs) What if I said someone was stupid and proved it?

Joanne: Justification as a defence for insulting someone… hmmm. (Laughs)

TMI: Establishing the truth of someone’s stupidity will keep teams of lawyers occupied forever. What about Jamal’s beer-smashing stunt?

Joanne: What Jamal does is dangerous, is bullying. When he gets just a slap on the wrist, it emboldens others.

TMI: It was just “sandiwara”. Nobody was hurt. Right?

Joanne: What if somebody was hurt? Khalid Samad was attacked on the grounds of Parliament. The assailants were on a minor offence when they could have been charged with a more serious offence. They have such wide discretion in applying the law.

TMI: The scales of justice were not balanced from the start? The “dacing” has a bias? Consumer affairs enforcement officers, please. Do you feel hamstrung, at a disadvantage because the judiciary merely interprets the laws that have been drawn up by the legislative? It’s up to judges to adjudicate and lawyers to argue the lexical ambiguities in legislation.

Surendra: In the Constitution, there is a list of fundamental rights, such as freedom of expression. The terms for these rights are vague. There are judges who will take a liberal approach. Others, a literal one. Take the case of Tony Pua’s travel ban.

A lot of people were outraged by the decision, but if they had read the decision, the judge had some basis for his judgment. He took from precedents going all the way back to the 1950s. Some may say he should have used more modern precedents, but he did have a basis for his judgment.

We are now seeing judgments that are taking a more conservative approach. I have won cases and I have lost. What I realise from my losses is that we cannot rely solely on the courts and lawyers for effective change.

Litigation is also a tool for awareness. Take the transgender case. A lot of people didn’t know about their plight. That case sparked change on other fronts.

Joanne: Surendra takes a very generous approach to law – that there is no one way of looking at the law, no right, no wrong.

I think there is a correct way. When it comes to interpreting the Constitution, the rights of the people must be construed liberally, and if there are constrictions to liberties, these should be construed narrowly. That is the only test judges should be bound by: rights liberally, restrictions narrowly.

Surendra: Following Malik Imtiaz Sarwar around the apex courts, I learnt how to speak to the judges – for example, if you push hard for certain rights, they might panic; what if it opens the floodgates? Tone it down. Pitch it differently. We got to make the best of what we have. We have to maintain a relationship with the bench.

Joanne: Why do we keep on doing it? It’s frustrating. It’s tiring, but we must keep pushing, fighting for change.

Surendra: I am less hopeful than her. I recently decided to do my master’s at Oxford, because it will give me a chance to fight for human rights in a different way. I don’t know, how long can I last? I admire these lawyers, Imtiaz, Gobind, who have stayed true to their cause. – October 15, 2017.

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  • " .......The law is hardly ever used .... (Section 498 of the Penal Code?)......" - How about .......... Revenge of the Cuckolded Husbands ... or ..... Revenge of the Scorned Wives (must have gender equality-lah) ........ soon courts will be very busy .....

    Posted 6 years ago by Malaysian First · Reply

  • Section 498 of the Penal Code? .... are police investigating 1Couple, 2Spouses?

    Posted 6 years ago by Malaysian First · Reply