3.0 LAWYER IN CONTEMPT: IS THE SITUATION GETTING WORSE?
3.1 The Position in Malaysia
Article 126 of the Federal Constitution grants the Federal Court, Court of Appeal, and High
Court the authority to punish contempt. The power to punish contempt mentioned also
provided again under Section 13 of Courts Judicature Act 1964. Additionally, Section 99A
of the Subordinate Courts Act grants subordinate courts the power to punish contempt,
with reference to Section 9 of the third schedule.
However, this constitutional provision lacks specific details regarding the definition of
contempt offenses, procedural requirements, defences available, and appropriate
sentencing guidelines. Consequently, the absence of a codified Contempt of Court Act
has created ambiguity in its application and raised concerns about the consistency and
fairness of the judicial process.
By comparing Malaysia's legal framework with countries such as India and England, where
specific acts govern contempt of court, it becomes evident that Malaysia's reliance on
common law principles and constitutional provisions hampers the establishment of a
comprehensive and uniform system for dealing with contempt. The lack of a codified act
has impeded the clarity, certainty, and predictability of contempt proceedings in Malaysia,
necessitating immediate attention.
Acknowledging the need for comprehensive legislation, the Bar Council of Malaysia has
proposed a Contempt of Court Act aimed at addressing the existing gaps and providing
clear guidelines for contempt-related matters. This proposed act, presently under
consideration by the Attorney General's chambers, aims to enhance the legal framework
governing contempt of court and streamline the process to ensure consistent and fair
outcomes.
In the absence of specific legislation, the Rules of Court 2012 serve as a partial guide for
contempt proceedings in Malaysia. These rules provide procedural guidelines
encompassing the filing of applications, service of documents, and the rights of individuals
accused of contempt. Upholding principles of natural justice, the accused individuals are
guaranteed a fair hearing, the opportunity to present their case, and the right to legal
representation.
3.1.1 Punishment for Contempt of The Court
The courts in Malaysia possess wide discretionary powers in sentencing for contempt, as
opposed to statutory offences with defined punishment or sentencing. While there are no
specific limits on punishment, Order 52 r. 9 of the Rules of Court 2012 provides for fines
and imprisonment. The absence of clear guidelines on sentencing limits raises concerns
about consistency and leaves the discretion to the courts, potentially resulting in varying
penalties for similar contemptuous behavior. In addition, the lack of clear guidance
regarding sentencing limits raises concerns about the potential for arbitrary or excessive
punishments.
3.2 Enforcement Challenges
3.2.1 Balancing Judicial Process and Freedom of Expression
Enforcing contempt of court laws requires striking a delicate balance between
safeguarding the judicial process and upholding the right to freedom of expression
enshrined in Article 10 of the Federal Constitution. Determining the threshold at which
expression becomes contemptuous can be complex, necessitating careful consideration
of competing interests.
3.2.2 Burden of Proof
Proving that an act of contempt has interfered with the administration of justice presents
inherent difficulties. The burden of demonstrating the impact of contemptuous behavior on
the judicial process falls upon the prosecution, requiring robust evidence and legal
arguments.
3.2.3 Self-Censorship and Chilling Effect
The absence of clear guidelines and the discretionary nature of contempt proceedings
may engender a climate of self-censorship, where individuals refrain from expressing
opinions for fear of potential punishment. The chilling effect of self-censorship poses a
challenge to the open exchange of ideas and public discourse.