Free speech vs contempt

MALAYSIANS have been stirred up about some aspects of the law of late. 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?

A sitting judge of the Court of Appeals recently filed an affidavit in a suit making 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 about the judiciary.

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

Lord Hardwick (1690-1764), English lawyer and politician who served as Britain’s Lord Chancellor, outlines the three-fold classification of contempt:

> Scandalising the court itself;

> Abusing parties who are concerned in the cause in the presence of the court; and

> Prejudging before the cause is heard.

Contempt of court can broadly be classified into two types: civil contempt and criminal contempt.

Civil contempt usually happens when a party refuses to comply with an order of the court. Criminal contempt is more serious than civil contempt. It happens when a person scandalises the courts or interferes with or undermines judicial proceedings. In a Malaysian context, examples of criminal contempt would be writing an insulting or vicious letter or throwing a slipper at the presiding judge or judges. These have occurred in the past.

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 a vicious letter, the contemner was fined RM5,000. The slipper thrower was imprisoned for one year.

Perhaps the only defence open to a contemner is an apology. The contemner 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 such cases, the court would consider mitigating factors and instead reduce the punishment.

Contempt proceedings are usually taken out by any one of the following three persons: a private person or party, the Attorney-General (AG), or the court itself.

The first category usually happens in civil cases. In other cases, the AG will move the court for leave (permission) to cite the contemner for contempt. The third option is when the court may itself proceed to cite a person for contempt, usually by issuing a show cause letter specifying a date and time for the contemner to appear and answer the charge.

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 Susan Coralie 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.” 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 Britain’s Lord Justice Salmon (1903-1991), in the case of Ex Parte Blackburn (No.2) [1968] 2 QB 150, are relevant (on 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’d like to include a decision in an Australian case in the expectation it will 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 (online at bit.ly/star_legal).

This discussion of contempt relates directly to the revelations by the 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, it is entirely a different matter to demean or insult the judges behind them.

It therefore is no surprise that the AG moved the Federal Court to cite at least one lawyer for contempt of court. Notably, at least one comment in particular runs afoul of the right to free speech: In an interview with news agency Bernama on Feb 18, 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 a 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 allowed the application by consent.

The legal practitioner failed to explain this part. 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 AG to institute committal proceedings against their client.

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.

DATUK SYED AHMAD IDID

Former Justice of the High Courts of Malaya & Borneo

-Star