Time to codify contempt of court

In 2020, the Minister of the Prime Minister’s Department, Datuk Takiyuddin Hassan, said the government is considering drafting a special law similar to Singapore’s Administration of Justice (Protection) Act 2016 to handle contempt of court cases.

In Malaysia, the law of contempt operates under constitutional and statutory frameworks while drawing on common law principles. Article 126 of the Federal Constitution explicitly grants the Federal Court, the Court of Appeal, and the High Courts the power to punish for contempt of Court. This constitutional provision is mirrored in Section 13 of the Courts of Judicature Act 1964, which affirms the superior courts’ authority in this domain. For subordinate courts, Section 99A of the Subordinate Courts Act 1948 provides similar powers to punish for contempt.

Despite these statutory provisions, many areas of contempt law in Malaysia remain guided by common law due to the lack of a comprehensive statute. This reliance on common law is evident in the courts’ adherence to principles established in cases such as Attorney-General, Malaysia v Manjeet Singh Dhillon, and Lim Kit Siang v Datuk Seri Dr Mahathir Mohamed. The common law framework encompasses various forms of contempt, including contempt in the face of the Court, scandalising the Court, prejudicing or impeding court proceedings, and interfering with the course of justice.

Contempt in Malaysia is categorised into civil and criminal contempt. Civil contempt typically involves disobedience of court orders and is aimed at compelling compliance for the benefit of the complainant. In contrast, criminal contempt is characterised by actions that pose a public wrong, such as interfering with the administration of justice, and requires punitive measures to maintain public confidence in the judiciary.

The law of contempt aims to balance the protection of judicial integrity with the constitutional right to freedom of expression enshrined in Article 10 of the Federal Constitution. This article allows for restrictions on free speech to maintain the authority and impartiality of the judiciary. However, this balance often leads to tension, as seen in various judicial pronouncements stressing the importance of protecting both judicial processes and free speech.

Given the critical role of the judiciary in upholding the rule of law, the law of contempt serves as a necessary mechanism to prevent undue interference with judicial proceedings. Yet, the need for codification has been emphasised to provide clarity and consistency, addressing issues such as the definition of contempt, applicable procedures, and the rights of the accused.

Our approach to contempt of Court is not without its shortcomings and has faced criticism because of its reliance on common law principles and the absence of a comprehensive statutory framework. This lack of codification leads to ambiguity and inconsistency in its application, resulting in unpredictable and potentially arbitrary decisions. Critics argue that broad discretion without clear guidelines can lead to erratic and potentially unfair decisions. Too much discretion is not always a good thing, given that the power to punish for contempt also carries a personal dimension because the tribunal passing the sentence is doing so to protect its own integrity.

To address these issues, there are calls for the codification of contempt laws in Malaysia. Codification would provide clear definitions of contempt, establish fair and transparent procedures, and balance the protection of the judiciary’s integrity with safeguarding free speech. By following the examples of jurisdictions like England and Singapore, which have successfully codified their contempt laws, Malaysia can create a more predictable and just legal framework that protects both the administration of justice and fundamental rights.

In England, the Contempt of Court Act 1981 provides specific statutory defences to protect individuals and entities from being unfairly penalised for contempt of Court, particularly concerning the strict liability rule for publications. One key defence is the innocent publication or distribution defence under Section 3. This defence applies when a person did not know and had no reason to suspect that legal proceedings were active at the time of the publication or distribution. This protects individuals who might have unknowingly published or distributed potentially prejudicial material.

Another significant defence is the contemporaneous reports of proceedings defence under Section 4. This defence protects fair and accurate reports of ongoing legal proceedings, allowing the media to report on these proceedings without fear of being held in contempt. The defence ensures that the reporting must be contemporaneous and bona fide, maintaining the integrity and accuracy of the information shared with the public.

Additionally, the discussion of public affairs defence under Section 5 allows for the publication of discussions in good faith on matters of public interest. This defence is valid as long as the risk of prejudice to specific legal proceedings was merely incidental to the broader discussion. Although not explicitly stated in the Act, case law has also recognised the public interest defence. This defence can be argued if the publication or Act was done in the public interest, weighing the need for open justice against the protection of ongoing legal proceedings.

In Singapore, the Administration of Justice (Protection) Act 2016 outlines several statutory defences to safeguard individuals from unjust penalties for contempt of Court. One key defence is the fair and accurate reporting defence, which protects individuals or media entities publishing fair and accurate judicial proceedings reports. This defence is crucial for maintaining transparency and allowing the public to stay informed about judicial matters without the risk of being held in contempt, provided the reports do not

misrepresent the facts or are intended to prejudice ongoing cases.

The Act also provides the public interest defence, which allows individuals to argue that their actions were in the public interest. This defence recognises the importance of open discussions on matters of public concern, even if such discussions incidentally affect ongoing legal proceedings. The courts balance this need for transparency and public debate with the necessity to protect the integrity of the judicial process.

In cases of Singaporean cases of contempt due to disobedience, demonstrating a lack of intentional defiance can serve as a defence. This defence might involve providing evidence that the individual misunderstood the requirements of the court order or that circumstances made compliance impossible or extremely burdensome. This is where the law in Malaysia is currently lacking because of the strict approach taken by the Court based on the common law. Many lay people do not understand the intricacies of court orders, may not even receive correct legal advice, and will be subject to jail time for contempt and deprivation of their liberty.

The English and Singaporean models of codification can be easily replicated to ensure that upholding judicial authority is tempered by compassion and mercy. The government must revive the attempts to codify contempt laws without haste.