The Malaysian lawyer at the center of a 2007 judicial scandal has emerged as an unlikely potential martyr for free speech. V.K. Lingam’s offense? Scandalizing the judiciary, a somewhat antiquated form of contempt of court that is part of Malaysia’s legacy of English common law. Historically, such charges were based upon scurrilous abuse of the judiciary or accusing judges of corruption or improper motives. Most well-known cases of scandalizing the judiciary—Malaysian or otherwise—have been against journalists and authors, but the case against Lingam is unusual in that it stems from allegations made in court filings. Seeking to overturn a decision against his clients, Lingam accused Malaysia’s highest court of plagiarism, alleging that a judge’s decision reproduced large portions of Lingam’s opponents’ filings. Now Lingam and his clients face possible jail time.
Lingam himself is a controversial figure in Malaysia, best known not for his criticism of the judiciary but for alleged influence over it. In 2007 an Internet video showed Lingam apparently discussing his ability to fix judicial appointments, including that of the chief justice of Malaysia. Lingam denied the authenticity of the video, but a royal commission of inquiry found that Lingam committed criminal misbehavior and recommended prosecution. The revelations led to the resignation of Chief Justice Ahmad Fairuz Sheikh Abdul Halim and several other judges, although the Malaysian attorney general’s office ultimately said the tapes were not sufficient evidence that Lingam actually influenced the appointment of judges, and he was not prosecuted.
At that time, the commission of inquiry heard testimony from Lingam’s secretary that on some occasions, the lawyer’s office actually wrote the opinions used by judges ruling in favor of his clients. So it’s somewhat ironic that Lingam is now facing potential jail time for his plagiarism accusations against Malaysia’s highest court.
The case stems from the sale of a stake in Kian Joo Can Factory Bhd (KJCF), Malaysia’s largest cannery, to its rival Can-One Bhd. In 1998 Kian Joo Holdings Sdn Bhd (KJH), which held a 34.5 percent share in KJCF, went into liquidation. A decade later, liquidators at KPMG agreed to sell the shares to Can-One. The deal was quickly challenged by 12 wealthy businessmen who together held a majority stake in KJH. With Lingam as their attorney, they filed an application to block the sale on the grounds of a conflict of interest, since KPMG had served as Can-One’s auditor. (KPMG did not respond to requests for comment. Lingam declined to comment.)
The group lost before the High Court—Malaysia’s third-highest court—but convinced the Court of Appeal to reverse the decision. In January 2012, however, the Federal Court—the country’s top court—found in favor of the liquidators, represented by Cecil Abraham, a partner at top domestic firm Zul Rafique & Partners. The court ruled that the Can-One deal could finally proceed.
That was far from the end of the story.
Lingam then filed a new Federal Court motion in February 2012 that raised allegations of plagiarism against Malaysia’s chief judge, Tan Sri Zulkefli Ahmad Makinudin, who headed the panel that presided over the original Federal Court case. In the notice of motion, Lingam claimed that the majority of Zulkefli’s judgment had been “copied almost word-for-word” from the appellants’ written submission. He requested the decision be reviewed before a new panel, a request permitted under the Federal Court’s rules. The alleged plagiarism “clearly [showed] that the minds of the Federal Court panel of judges . . . were closed to a fair and impartial consideration of the applicants’ case,” the notice argued.
The move backfired in spectacular fashion. In April, following submissions by Abraham and senior lawyers from the attorney general’s office and the Bar Council, a five-judge Federal Court panel postponed the review indefinitely and granted leave to issue contempt proceedings against Lingam and his clients.
According to Asian Lawyer ‘s review of the relevant documents, 54 of the 56 paragraphs that constitute the Federal Court’s judgment—and 47 of the 48 paragraphs under the heading “decision”—are nearly identical to the appellants’ written submission. (The text differs only by the insertion of phrases such as “we find,” “it is our judgment,” and “in our view.”)
Abraham did not respond to our requests for comment, but told the court in his submission that reproducing the legal submission of the applicants was “part and parcel” of the adjudicating process and in itself no proof of bias.
Though judicial plagiarism can certainly be taken as a sign of laziness, there is actually little consensus that such verbatim copying is harmful. In the United States, federal circuit courts are divided on the issue, and some state supreme court decisions have explicitly said that it is permissible on grounds of judicial economy.
But judicial plagiarism has also been considered a reasonable basis for appeal—in Malaysia and beyond. In the 2010 case of Celcom Malaysia Bhd v. Mohd Shuaib Ishak, for example, the appellant complained that the High Court had almost totally adopted the submission of the respondent as its grounds of judgment. The Court of Appeal said that it “did not approve of the method adopted by the learned judge in producing his judgment,” and while the practice was not a sufficient basis upon which to overturn the judgment, the flaws were enough for it to allow the appeal.
It’s unclear how much jail time Lingam and his clients could face. The liquidators have requested a custodial sentence be imposed rather than a fine, referring to a case last March in which a former imam was sentenced to a year behind bars for contempt after throwing a shoe at Federal Court judges. In one well-known case from 1999, journalist Murray Hiebert, a Canadian national, received a six-week sentence for reporting that a lawsuit filed by a judge’s wife moved atypically fast through Malaysian courts. (His sentence was reduced to four weeks for good behavior.)
In September one of the United Kingdom’s leading barristers, Lord David Pannick QC, spoke in Kuala Lumpur on the importance of judicial accountability and specifically argued that the offense of scandalizing the judiciary should be abolished. “Judges, like other public servants, must be open to criticism,” Pannick said.
There are signs that Malaysian judges recognize the need to raise their game. At a four-day judges’ conference, held last January in Putrajaya, home to Malaysia’s government, the country’s new chief justice, Sri Arifin Zakaria, told delegates that the judiciary would punish judges who failed to produce good written judgments. At a separate event in July, Arifin told a group of more than 100 top judges that they “must be accountable” for their official duties.
“We have to provide reasons through our judgment,” Arifin said. “Inefficient, incompetent, and biased judges are indeed subjected to disciplinary action under our code of ethics.”
Arifin headed the Federal Court panel that granted leave to cite Lingam and his clients for contempt. He did not respond to requests for comment. •