SUB JUDICE is Latin for “before the court”. When a matter is sub judice, it is under judicial consideration.

In Westminster parliaments such as the Dewan Rakyat, there is either a convention or parliamentary standing order that restricts the discussion of matters that are before the courts known as the sub judice convention or rule.

In the Dewan Rakyat, the rule can be found in Standing Order 23(1)(g) which says that “a question shall not be so drafted as to be likely to prejudice a case under trial, or be asked to any matter which is sub judice.”

As a parliamentary convention, its origin is unclear. But it was referred to and considered by the UK Select Committee on Procedure in 1972 (See the Fourth Report of the Select Committee on Procedure, Session 1971-72, Matters Sub Judice, 1972). The report of the select committee suggested that the existence of the convention may be traced as far as before 1844.

The purpose of the convention is said to be two-fold. The first is to prevent comments and debates in parliament from exerting an influence on court proceedings and from prejudicing the position of parties and witnesses in the court proceedings.

This is very much similar to the purpose of common law sub judice, which is to prevent publication of materials that interfere with, or has the tendency to interfere with, the course of justice or the conduct of a fair trial. It is premised that interference is likely to occur unless appropriate restraints are imposed.

The second purpose is to prevent parliamentary debates on matters sub judice (before the court) so that a House of Parliament like the Dewan Rakyat is not set up as an alternative judicial forum to a court, which could lead to a conflict between parliament and the court. (See Vicky Mullen, “The Parliamentary Sub Judice Convention and the Media”, (1996) UNSW Law Journal 303)

Vicky Mullen suggested that the second purpose could not be seriously considered as “it could never be seriously believed that modern Houses of Parliament would set themselves up as alternative courts with the purpose of determining and enforcing (as compared with discussing and debating) parties rights, in the same manner as courts of law.”

It is therefore difficult to argue that parliament, in discussing and debating matters already before the court, seeks to act as an alternative to the court. Parliament does not seek to “poison the wells of justice” by discussing and debating matters sub judice.

The freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned. Freedom of speech in parliament has been described as “one of the most cherished of all parliamentary privileges, without which parliaments probably would degenerate into polite but ineffectual debating societies”. (See E Campbell, Parliamentary Privilege in Australia, 1966)

The convention is therefore more of a self-imposed restraint or restriction by parliament itself.

It is to balance freedom of speech in parliament and fair trials. Graham Steele argues:

“Both are important values. [But] neither can be permitted entirely to trump the other. There are… reasons why drift into an over-broad, automatic restriction on parliamentary debate.

“Parliamentary sovereignty must be assiduously protected. The rights of Westminster parliaments…  should not lightly be given away. Parliaments must not defer automatically to any process.” (Graham Steele, “The Sub Judice Convention: What to Do When a Matter is ‘Before the Courts’,” Canadian Parliamentary Review 2007)

Accordingly, the sub judice convention should only be invoked to prevent discussions and debates prejudicial to a judicial proceeding that would poison the wells of justice before they have begun to flow. (See James Rowland Odgers, Australian Senate Practice, 1991)

In the UK House of Commons, it has been resolved that matters sub judice apply only to cases “in which proceedings are active in United Kingdom courts.”

Where a matter concerns issues of national importance such as the economy, public order or the essential services, reference to the issues or the case may be made in motions, debates or questions. (House of Commons Resolution of 15 November 2001)

The Dewan Rakyat cannot degenerate into a polite but ineffectual debating society by reason of the sub judice convention or rule. – July 20, 2022.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.