EX parte is a Latin term meaning “by or for one party”. In legal proceedings, the term refers to proceedings that are conducted without notice to, and outside the presence of, other parties affected by the proceedings.

So, it is curious that there should be reports of an ex parte application having been filed by Attorney-General (AG) Ahmad Terrirudin Mohd Salleh for former Umno information chief Isham Jalil to be jailed or fined for contempt of court over an interview titled “Townhall for Justice: Keadilan Sebenarnya Untuk Siapa”, broadcast on Facebook page “The Malaya Post” on September 30, 2023. 

There does not appear to be a press statement from the Attorney-General’s Chambers.

A committal proceeding for contempt of court is quasi-criminal in nature since it involves the liberty of the alleged contemnor. Accordingly, there are procedural safeguards before a party is labelled as an alleged contemnor and committal proceedings allowed to be begun against him.

The first of the safeguards is leave of the court is required to commence committal proceedings. Order 52 rule 3(1) Rules of Court 2012 makes it clear that no application to a court for an order of committal against any person may be made unless leave to make such an application has been granted.

Application for such leave is made to the court ex parte by reason of Order 52 rule 3(2), which states in no uncertain terms that the application must be so made to the court. Even so, there are safeguards.

The application must be supported by a statement setting out the name and description of the applicant; the name, description and address of the person sought to be committed; and the grounds on which the committal is sought.

The facts relied on must also be supported and verified by an affidavit, which must be filed before the application is made. The provisions of the rules are mandatory and non-compliance nullifies the proceeding.

All the relevant facts must be before the court to enable the court to make a fair and just decision. The applicant must set out the facts fairly, including the facts that are likely to be raised by the proposed alleged contemnor in objecting to the application if it were an inter partes (Latin for “between the parties”) application.

If any fact is likely disputed by the other party, the applicant must say so and give his reasons why such dispute is not sustainable, or is irrelevant or immaterial. The applicant is not to merely state the facts favouring his application and the court must not rely on that alone. Otherwise, the leave procedure would cease to be a safeguard and instead easily becomes a tool exploited for oppression.

In the case of Tan Sri G Darshan Singh v Tetuan Azam Lim & Pang [2013] 5 MLJ 541, the Court of Appeal found on the facts the application for leave had neglected to mention relevant and material facts. The grounds must be set out with sufficient particularity to enable the person alleged to be in contempt to meet the charge later.

In an earlier case of Folin & Brothers Sdn Bhd (in liquidation) v Wong Boon Sun [2009] 5 MLJ 362, the Court of Appeal held that the word ‘must’ in the rules means it is mandatory, and has to be strictly complied with. The details on which the applicant intends to rely must be set out in the supporting statement itself and not to be explained separately by way of submission by counsel, be it orally or in writing. (See The New Straits Times Press (M) Bhd v Ahirudin bin Attan [2008] 1 MLJ 814)

Based on the above, the ex parte application filed by the AG must be for leave of the court to commence committal proceedings. It appears that the ex parte has not even been heard by the court.

It’s early days.

There are safeguards before a party is labelled as an alleged contemnor, and committal proceeding is allowed to be begun against him. – January 8, 2024.

* 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.