Free speech vs contempt

 Wednesday, 20 Mar 2019

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.

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Civil contempt usually happens when a party refuses to comply with an order of the
court. Cri-minal 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”.

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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.

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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

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Criminal Contempt of Court
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You may be familiar with the phrase "contempt of court" by watching a courtroom
drama or footage of a real-life trial. But what does it really mean? And what is
"criminal contempt of court"? Contempt of court generally refers to conduct that
defies, disrespects, or insults the authority or dignity of a court. Often, contempt
takes the form of actions that are seen as detrimental to the court's ability to
administer justice.

Contempt of Court: Criminal vs. Civil

Judges typically have much discretion in deciding whom to hold in contempt and the
type of contempt. Those held in contempt can include parties to a proceeding,
attorneys, witnesses, jurors, people in or around a proceeding, and officers or staff of
the court itself. There are two types of contempt of court: criminal contempt of court
and civil contempt.

Civil contempt often involves the failure of someone to comply with a court order.
Judges use civil contempt sanctions to coerce such a person into complying with a
court order the person has violated.

However, if you're charged with criminal contempt of court, the charges are punitive,
meaning they serve to deter future acts of contempt by punishing the offender no
matter what happens in the underlying proceeding. Someone incarcerated for
criminal contempt can't secure their own release by deciding to comply with the
court.

Judges use different factors when deciding whether to hold someone in civil or
criminal contempt, including the nature of the underlying court proceeding (criminal
or civil) and the severity of the contemnor's behavior.

Criminal Contempt of Court Charges

Criminal contempt charges become separate charges from the underlying case.
Unlike civil contempt sanctions, criminal contempt charges may live on after
resolution of the underlying case.

One charged with criminal contempt generally gets the constitutional rights

guaranteed to criminal defendants, including the right to counsel, right to put on a
defense, and the right to a jury trial in certain cases. Charges of criminal contempt
must be proven beyond a reasonable doubt.

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However, incarceration for contempt may begin immediately, before the contempt
charge is adjudicated and the sentence decided. Depending on the jurisdiction and
the case, the same judge who decided to charge a person with contempt may end
up presiding over the contempt proceedings. Criminal contempt can bring
punishment including jail time and/or a fine.

Direct and Indirect Contempt

Contempt of court can take place either "directly" or "indirectly."

Direct contempt happens in the presence of the court. For example, someone could
commit direct contempt by yelling at the judge in a way that impedes the court's
ability to function and brings disrespect on the court.

Indirect contempt occurs outside the presence of the court. Examples include
improperly communicating with jurors outside the court, refusing to turn over
subpoenaed evidence and refusing to pay court ordered child support. Be aware that
not all of these examples illustrate criminal contempt.

Conclusion

Criminal contempt of court refers to behavior which disobeys, offends or disrespects

the authority or dignity of a court. It can occur directly, in the presence of the court, or
indirectly when it happens outside the presence of the judge. Criminal contempt
charges become separate charges from the underlying case. Adjudication of charges
and punishment for criminal contempt may continue after resolution the underlying
case.

Get Legal Assistance with Your Criminal Contempt of Court Case

One way to minimize the risk of a contempt of court charge is to have an attorney
stand and speak for you. Additionally, an attorney's advice can help keep you in
compliance with court orders, or help argue on your behalf when a contempt charge
is leveled at you. Contact a local criminal defense attorney today to get some peace
of mind with your case.