MALAYSIANS are up and about regarding some aspects of the principles of law. Are laws stringent and unfair to one party when the other is said to “win” a case?

Do all courts and judges protect themselves by holding persons in contempt?

Contempt of court

A sitting judge of the Court of Appeals recently filed an affidavit in a suit making certain allegations of misconduct against the judiciary. Certain groups picked up on those allegations and took them to the media. They wrote articles and gave television interviews and made scathing remarks against the judiciary.

While the freedom of speech and expression is indeed constitutionally guaranteed fundamental liberties, it must nonetheless be exercised responsibly and lawfully. One very important limitation on these rights is the prohibition against certain acts which can be caught as “contempt of court”. Everyone seems to be familiar with this phrase. One might have come across it in conversations with friends, heard of it from movies and read it in law reports or novels. But what does the concept entail? Why does it exist?

Definition

Lord Hardwick, an English lawyer and politician who served as Lord Chancellor, outlines the three-fold classification of contempt:

1. scandalising the court itself
2. abusing parties who are concerned in the cause in the presence of the court
3. prejudging the public before the cause is heard

Contempt of court can broadly be classified into two types:

1. civil contempt
2. criminal contempt

The Malaysian law on this is similar to India’s and the laws in other Commonwealth jurisdictions.

Civil contempt usually happens when a party or person refuses to comply with the order of the court. For example: the court may have issued an injunction in favour of A ordering B to cease a certain act. If B refuses or fails to comply with the terms of the injunction, A may then come back to court and take out what is called committal proceedings. B will then be called to court to explain himself. If the court finds that B has indeed refused or purposely failed to comply with the injunction, then he may be cited for contempt. The purpose of this type of contempt is remedial i.e. to ensure that there is justice to A for B’s failure to respect a court order.

Criminal contempt is more serious than civil contempt. It happens when a person scandalises the courts, interferes with, or undermines judicial proceedings. In a Malaysian context, one example would be writing an insulting or vicious letter or throwing a slipper at the presiding judge or judges. These have occurred in the past.

Put in another way, contempt is the offence of being disobedient to or disrespectful towards courts of law and its officers or the disregard of a court order.

Regardless of whether contempt is civil or criminal, the resulting effect is criminal. This is because a person guilty of contempt may either be imprisoned or fined. The term of imprisonment or the amount of the fine depends largely on the seriousness of the contempt. In the case of vicious letter, the contemnor was fined US$5000. The slipper thrower was imprisoned for one year.

On August 7, 2017, a prominent lawyer was fined S$6000 for posting on Facebook a poem alleged to cast certain aspersions on the Singapore judiciary.

Perhaps the only defence open to a contemnor is an apology. The contemnor will usually be allowed to apologise and if the contempt is not serious, he might not suffer punishment. In more severe cases, an apology might prove insufficient. In those cases, the court would consider mitigating factors and instead reduce the punishment.

Who may initiate contempt proceedings?

Contempt proceedings are usually taken out by either one of the following three persons:

1. a private person or party
2. the attorney-general
3. the court itself

The first category usually happens in civil cases. An illustration of this would be the injunction example above. In other cases, the attorney-general will move the court for leave (permission) to cite the contemnor for contempt. In other cases, the court may itself proceed to cite a person for contempt. The court usually does that by issuing a show cause letter specifying a date and time for the contemnor to appear and answer the charge.

The rationale

To understand the rationale for contempt, one must first appreciate another equally important concept known as judicial independence. Judicial independence basically means that judges must be impartial and free to make their decisions without any pressure and interference. The concept is rooted in public confidence in the judiciary. Justice Kenny of the Australian Federal Court had this to say: “the strength of the judiciary lies in the command that it has over the hearts and minds of men”. And hence also the age-old phrase: “justice must not only be done but seen to be done”.

Poor public perception of the judiciary therefore exerts negative pressure on judges and undermines judicial independence which may in turn further weaken public confidence in the judiciary. It is a vicious cycle. That is not to say that criticism and fair discussion are not welcomed. Fair criticism is welcomed in that it is the vehicle for academic development.

In this vein, the following words of Lord Justice Salmon in the case of Ex Parte Blackburn (No 2) [1968] 2 QB 150 are relevant (at page 155): “No criticism of a judgment, however vigorous, can amount to contempt of court, providing it keeps within the limits of reasonable courtesy and good faith”. But even fair comment has its limits.

I like to include a decision of an Australian case in the expectation it can gladden all hearts and warn the courts of their duty to the law. The power to punish for contempt is exercised to vindicate the integrity of the court and its proceedings and is rarely, if ever, exercised to vindicate the personal dignity of a judge. Lewis v Ogden (1984) 153 CLR 682.

The Hamid Sultan episode

The above discussion on contempt relates directly to the revelations by a Court of Appeal judge. Several parties have gone around making comments about Malaysian judges. It is one thing to question (even if critically) the academic bases of judgments, but it is entirely a different matter to demean or insult the judges behind them.

It therefore does not come as a surprise that the attorney-general moved the Federal Court to cite at least one lawyer, for contempt of court. Notably, at least one comment of his in particular runs afoul of his right to free speech.

In an interview with Bernama on February 18, 2019, a legal practitioner spoke about the Federal Court’s decision to allow the Asian International Arbitration Centre to intervene and then to expunge a portion of a dissenting judgment by the Court of Appeal judge in the leap modulation case. He noted that the Federal Court’s decision to allow the applications for intervention and expunction simultaneously as “steamrolling” the Court of Appeal Judge’s dissenting judgment. He repeated these allegations in two online articles .

It appears to me that the allegations could not be further from the truth. The Federal Court inquired from all parties whether they had any objection to the application to expunge to which they had none. Having no need for further argument, the Federal Court in essence allowed the application by consent. The legal practitioner failed to explain this part.

In the result, he painted the judges as having conspired with the Arbitration Centre and hence corrupt. That seems to be taking free speech too far and so can fall squarely within the realm of contempt.

The lawyers acting for the said legal practitioner, applied to set aside leave granted by the Federal Court for the attorney-general to institute committal proceedings against their client.

Conclusion

Citizens of a democratic country have the power to critically question the government. But they must be fair and reasonable. The right of free speech brings with it a heavy responsibility. While one may feel incensed at reading about unproven allegations, one must not resort to breaking the law to make an emotional point. – March 19, 2019.

* Syed Ahmad Idid is a former justice of the High Courts of Malaya & Borneo and director of KLRCA. He is a fellow of the Asian Institute of Chartered Bankers.

* 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.