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| V COMMON LAW PRINCIPLES AND THE RULE OF LAW |
| V.1 Common Law Doctrine of Absolute Privilege |
According to the common law, absolute privilege attaches to any statements made by judges, witnesses and advocates during the course of judicial or quasi-judicial
proceedings.[56] The principle and the immunity it provides from both civil and criminal proceedings has been a principle of primary importance to the integrity of common law legal systems for over three hundred years. The parameters of the doctrine of absolute privilege, which have remained constant, were enunciated in l772 by Lord Mansfield in R. v. Skinner:
“Neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office.”[57]
The only exceptions to absolute privilege are with respect to perjury, contempt of court and perverting the course of justice. In 1892, the English Court of Appeal affirmed the ambit of absolute privilege and its purpose as an essential requirement for the proper administration of justice:
“The authorities establish beyond all question this: that neither party, witness, counsel, jury, nor judge, can be put to answer civilly or criminally for words spoken in office; that no action for libel or slander lies whether against judges, counsel, witnesses, or parties for words spoken in the course of any proceeding before any court recognized by law and this although the words were written or spoken maliciously, without any justification or excuse, and from personal ill-will or anger against the party defamed. This 'absolute privilege' has been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech exist.”[58]
This above quoted statement of the law was adopted in January 2000 by the High Court of Malaysia in Thiruchelvaseharam a/l Manickavasegar v. Mahadevi a/p
Nadchatiram. Quoting the first sentence of the above passage, Justice Foong further stated that:
“The defendant has claimed that she made it [the statement] as counsel for Jega and for herself personally as a party in Suit 61. For this, she is entitled to be protected by absolute privilege….It is immaterial whether such proceedings take place in open court or in private and whether they are final or of a preliminary nature – see paragraph 13.3 of Gatley on Libel And Slander (9th edition).”[59]
In his decision, Justice Foong defined absolute privilege as protecting counsel guilty of misconduct and malice and rejected relevancy as a requirement stating that public policy required that the principle of privilege be subject only to those restrictions cited in R. v. Skinner. Justice Foong stated:
“…it[a relevancy restriction to absolute privilege] contradicts their Lordships’ basic rationale of preventing any pressure on counsel or parties when they present their case before the Court. Any exceptions or proviso attached to this rule on the freedom to advance a prosecution or defence without fear of an action for libel and slander will certainly defeat this concept on administration of justice as a public policy. In my view there must be no restriction placed in the way of this principle”.[60][emphasis added]
The application of absolute privilege to criminal prosecutions as articulated in R. v. Skinner was adopted in l993 by the High Court of Australia in Jamieson v. The Queen and Brugmans v. The Queen. Deane and Dawson
JJ. in the majority judgment commented on the dearth of cases on the subject with this observation:
“It is true that, until recently, there has been a dearth of cases in which common law courts have been called upon to quash a criminal proceeding or conviction by application of the principle. That is not, however, surprising. It could scarcely be expected that prosecuting authorities would institute proceedings in disregard of a general proposition of common law principle which had been enunciated by Lord Mansfield and subsequently endorsed by strong authority including a unanimous Court of Exchequer Chamber constituted by ten judges.”[61] [emphasis added] Privilege attaches to the occasion, and therefore no action can lie for libel and slander for defamatory statements made during a privileged occasion.
[62]
The scope of absolute privilege regarding statements made in judicial proceedings is very broad. Absolute privilege applies to all statements made and all matters done in open
court,[63] and includes the contents of documents tendered as
evidence.[64] Absolute privilege attaches to statements that are irrelevant to the matters before the
court,[65] and it is a defense to a criminal indictment for defamatory
libel.[66]
Most importantly as confirmed by Justice Foong, it is immaterial if the alleged libelous statements are false, malicious and spoken without justification:
“With regard to counsel, the questions of malice, bona fides, and relevancy, cannot be raised; the only question is whether what is complained of has been said in the course of the administration of the law.”[67]
The Australian High Court has also affirmed that the scope is broad enough to protect even false statements:
“In the case of a party or her lawyer, the phrase “words spoken in office” (from R. v. Skinner) at least encompasses “anything said … in the ordinary course of any proceeding in a court of justice”, “although falsely and maliciously and without any reasonable or probable cause.”[68]
The jurisprudence clearly defines absolute privilege as a full defense as the privilege provides complete immunity from liability to counsel for statements made before the court.
The doctrine of absolute privilege is based on public policy considerations. There are certain occasions when it is in the public interest that people must be able to speak and write with complete freedom and without fear of
prosecution.[69] “It is in the public interest that a person who is taking part or filling a role in litigation should be independent and encouraged to speak freely, so that the true facts may be ascertained, so that the credibility of witnesses may be accurately assessed, and so that the evidence and law may be frankly and candidly discussed to ensure that a correct and just result is obtained in the litigation.”[70]
“Freedom of speech without fear of consequences is … indispensable for the proper and effective administration of justice.”[71]
These public policy considerations are especially critical for lawyers. In a democratic society, which Malaysia's governmental structure would suggest it is, there is an essential need for freedom of speech for lawyers while defending and advocating for their clients' interests. As stated by Brett,
M.R. in Munster v. Lamb:
“…a counsel has a special need to have his mind clear from all anxiety. A counsel's position is one of the utmost difficulty. He is not to speak of that which he knows; he is not called upon to consider whether the facts with which he is dealing are true or false. What he has to do is to argue as best he can, without degrading himself, in order to maintain the proposition which will carry with it either the protection or the remedy which he desires for his client. For, more than a judge, infinitely more than a witness, he wants protection on the ground of benefit to the public. The rule of law is that what is said in the course of the administration of the law is privileged; and the reason of that rule covers a counsel even more than a judge or a witness If the rule of law were otherwise, the most innocent of counsel might be unrighteously harassed with suits, and therefore it is better to make the rule of law so large that an innocent counsel shall never be troubled, although by making it so large counsel are included who have been guilty of malice and misconduct.”[72][emphasis added]
A lawyer has a duty to his or her client to "fearlessly raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's
case".[73] The doctrine of absolute privilege is essential to allow a lawyer to effectively and zealously perform the duties he or she owes to clients. Subjecting lawyers to actions for defamation or sedition fetters and restrains them in discharging their
duty.[74] To be an effective advocate and aid to the court, "great latitude must necessarily be allowed to counsel, not only in the examination of witnesses, but in commenting upon their
testimony".[75] Malaysian lawyers cannot perform their duty towards clients, nor fully protect clients’ rights, if they are not free to make certain statements for fear of prosecution under the Sedition Act.
In Bretherton v. Kaye,[76] a lawyer was accused of defamation for remarks made during his opening address to a Board of Inquiry convened to determine allegations of police malpractice. The Court held that as the occasion was privileged and the lawyer had made his statements during the ordinary course of carrying out his duties as counsel, he was not liable for making the statements. It is a well established practice for counsel to make opening and closing remarks, and
“since the source of the evidence itself is protected from action for defamation, it is very necessary that counsel be free to submit the testimony to a critical examination involving, as it must, slanderous imputations having regard to the allegations made here. Public policy would demand that counsel should be encouraged to carry out this work fearlessly and independently and without fear of being sued for defamation.”[77]
The Malaysian Bar Council (the Council) has shown overwhelming support for the application of absolute privilege in Malaysian Courts, particularly to protect advocates from criminal and/or civil prosecutions for statements uttered in the course of judicial
proceedings.[78] In its resolution, the Council recognized that
"[i]t … is an entrenched Principle and Rule of Law in the Commonwealth and in Common Law that Advocates enjoy Absolute Privilege for all, any and every
statement(s) uttered in the course of Judicial Proceedings", and that "it is not merely a right but a duty of Advocates to speak out fearlessly in a Court of
Law".[79] The Council recognized that there is no reported precedent in the Commonwealth where a lawyer has been criminally charged for statements made during judicial proceedings. The Council urged the Attorney General to accord due recognition and respect to advocates discharging their duties in upholding justice, to respect the rights of an independent Bar and legal profession, and to withdraw the sedition prosecution against Karpal Singh as it sets a dangerous and unfair precedent regarding advocates' in-court
statements.[80]
In discharging his or her public duty, it is essential that lawyers enjoy freedom of speech without fear of legal or criminal consequences. Otherwise the proper administration of justice is seriously jeopardized. The doctrine of absolute privilege applied to the charges against Karpal Singh provides a complete defense. The charge itself alleges that the words were spoken during a privileged occasion -- in the course of representing his client in judicial proceedings before open court. The alleged statements are immune from civil or criminal liability and cannot form the basis of a criminal prosecution under the Sedition Act.
The sedition charge against Karpal Singh represents an alarming precedent that undermines a cornerstone of the democratic tradition: the right and duty of a lawyer to represent the best interests of his/her client fully. Absolute privilege must apply first and foremost to providing immunity from sedition prosecutions. It is a fundamental obligation of lawyers to be critical of the actions of the state where they constitute an abuse of power and to advocate against every injustice, including that occasioned by the improper use of the law. A vital role of lawyers in a legal system governed by the rule of law is to stand between the citizen and the state. |
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