Talking about sub judice and contempt

  • Law For Everyone
  • Thursday, 07 Apr 2016

WHEN it was said in Parliament that questions relating to a RM2.6 billion donation and SRC International were sub judice, Speaker Tan Sri Pandikar Amin Mulia was quite right when he said he would allow the questions to be raised on a case-by-case basis.

But leaving aside the RM2.6 billion donation and SRC International, there is indeed a lack of understanding of what sub judice really means. There is a perception that because something is the subject of a complaint or report or said in court, it is sub judice.

There have been occasions, when a party to court proceedings finds a part or whole of the report of proceedings in a newspaper not to his liking, that his lawyers write to the publisher of the report to say that reporting should not continue on the matter because it is sub judice.

When something is sub judice, reference to the subject does not by the mere fact make it an offence.

To say that something is sub judice is a description of the status of the matter. All that it means is that the matter is pending before the court and that the court has not yet made a decision.

A glance through dictionaries lists out the meaning as being “under judicial consideration”, “not yet decided” in the course of a trial and elsewhere it says, “if a legal case is sub judice, it is still being discussed in a court of law and it is therefore illegal for anyone to talk about it on the television, in newspapers, etc.”

The word sub judice has its ancestry in the Latin word which means under judgment. Thus its effect or meaning is that there is a particular case or matter under trial or being considered by a judge or court of law.

Where is the offence that arises out of a matter being sub judice? It is the subject of “contempt” that complements the sub judice status to prohibit certain statements being made.

The Federal Constitution contains provisions regarding contempt of court. Article 10(2) allows Parliament to impose by law a restriction on the fundamental rights of a citizen to freedom of speech and expression, peaceful assembly without arms and the right to form associations, if such restrictions are designed to protect against contempt of court.

Another provision is a general one which provides that, “the various Superior Courts will have power to punish any contempt committed against them”. By virtue of the provisions of the Subordinate Courts Act, 1948, a Sessions Court and a Magistrate’s Court also have the power to take action. Contempt of court is also punishable as an offence under the Penal Code.

The Penal Code also has a chapter, “Contempt of the Lawful Authority of Public Servants”, which covers a wide range of subjects including furnishing false information, refusing to answer a public servant authorised to question, or making a false statement on oath to a public servant or person authorised to administer an oath.

There are three main ways of categorising contempt. One kind of contempt is scandalising the court itself. Or there may be contempt in the form of abusing parties who are involved in litigation. Thirdly, there could be contempt of the court, in prejudicing the courts before a matter is heard.

It is sometimes said that a matter becomes sub judice once the legal proceedings have commenced. Others say that the matter is only sub judice once the proceedings have become active. Yet another view has been taken that it would even be contempt to discuss the matter if criminal or statutory proceedings are imminent.

There are also cases where proceedings have been filed but the proceedings have been dormant for a long time. If the matter is then discussed during this period of a lengthy dormancy, it has been held on the facts that it was not contempt. However such an outcome is rare.

Contempt of court is also based on the strict liability rule, whereby conduct may be treated as a contempt of court if it tends to interfere with the course of justice in legal proceedings, regardless of intent to do so.

As stated in Home Office v. Harman, it applies to publications, oral speeches, writing, or broadcasts addressed to the public at large if it creates a substantial risk that the course of justice will be seriously impeded or prejudiced, and if the proceedings in question are “active”.

There can of course be defence. These include innocent publication or distribution, a contemporary report published in good faith, or part of an objective discussion of public affairs.

But usually there will be no defence. The rationale for the offence of contempt is well stated by Lord Reid in Attorney-General vs Times Newspapers:

“I think that anything in the nature of pre-judgment of a case or of specific issues in it is objectionable, not only because of its possible effect on that particular case but also because of its side effects which may be far reaching. Responsible ‘mass media’ will do their best to be fair, but there will also be ill-informed, slapdash or prejudiced attempts to influence the public. If people are led to think that it is easy to find the truth, disrespect for the process of law could follow, and, if mass media are allowed to judge, unpopular people and unpopular causes will fare badly. Most cases of pre-judging of issues fall within the existing authorities on contempt. I do not think that the freedom of the press would suffer, and I think the law would be clearer and easier to apply in practice if it is made a general rule that it is not permissible to pre-judge issues in pending cases.”

  • Any comments or suggestions for points of discussion can be sent to The views expressed here are entirely the writer’s own.

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Opinion , Bhag Singh , columnist


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