Insaf – The Journal of the Malaysian Bar
Contempt of Court By Jerald Allen Gomez
Contempt of Court is a species of common law created to protect the administration of justice from interference by any party.
It has often been misunderstood as a power that exists to protect the dignity of judges. As Salmon LJ said, nothing is further from the truth – it is in fact a power that reposes in a judge for the protection of the public.
“The archaic description of these proceedings as “contempt of court” is in my view unfortunate and misleading. It suggests that they are designed to buttress the dignity of the judges and to protect them from insults. Nothing is further from the truth. No such protection is needed. The sole purpose of proceeding for contempt is to give our courts power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented. This power to commit for what is inappropriately called ‘contempt of court’ is sui generis and has from time immemorial reposed in a judge for the protection of the public.
The Phillimore Committee after an exhaustive study on the law of contempt in England, Wales and Scotland similarly concluded that the law of contempt is not there to protect the dignity of judges but in fact exists to protect the administration of justice and the fundamental supremacy of the law.
THE ADMINISTRATION OF JUSTICE
The administration of justice must be protected at any cost because it ensures that parties can resolve their dispute in a just and fair manner.
As Lord Denning said,
“The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society.”
However, it should only be used in very serious cases and as a matter of last resort as Lord Jessel MR said,
“…this jurisdiction to commit for contempt being practically arbitrary and unlimited, should be most jealousy and carefully watched and exercised…with the greatest reluctance and the greatest anxiety on the part of the judges to see whether there is no other mode …which can be brought to bear upon the subject…I have always thought that necessary though [this jurisdiction] be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men’s rights, that is, if no other pertinent can be found”.
It is the court that finally determines the rights and liberties of every citizen. This is the system we have chosen to ensure that we arrive at the truth -an adversarial system, where both parties to a dispute have a right to be heard and to present their case in the best way possible, presided over by an impartial judge who adjudicates the dispute according to a fixed objective criteria, not on the basis of personal preference.
The duty of an advocate is to “fearlessly uphold the interest of his client, the interest of justice and the dignity of the profession without regard to any unpleasant consequences either to himself or to any other person”. The law ensures that the advocate is given the proper privileges to enable him to canvass any argument in furtherance of his client’s case, no matter how unpleasant or difficult this task may be.
There are of course others, like bailiffs, process servers, police servers, police personnel, court staff, witnesses, etc, who are also involved in the administration of justice and should not be interfered with. But the most important persons are the advocate and the judge, the two limbs of the court – the advocate, because it is he who presents the facts and evidence, and the judge, for it is he who then decides the rights and liabilities of the parties, based on the facts and evidence adduced. If either one of these two limbs is prevented from performing their duty, there will no longer be a forum to correct any injustice, including any interference with the administration of justice.
A BRIEF HISTORY
From the earliest times, the court have used the power of contempt of court to punish those who obstruct the administration of justice.
The King’s Council initially took an interest in contempt cases and summarily punished persons for contempt. At the time the common law courts generally held that a contemnor, unless he confessed, – would have to be put on trial by jury. This power to punish summarily by the King’s Council for contempt eventually passed to the Star Chamber which not only punished for contempt of its own court but also that of the common law courts.
The Star Chamber dealt with contempt by its own arbitrary procedure, the alleged contemnor was summoned by a writ stating merely that he had committed contempt without specifying what the contempt was. Once before the court, he was examined either by interrogatories on oath or if he confessed, orally. Once guilt was established he could be both fined and imprisoned. When the Star Chamber was abolished in 1640. It appears that much of its jurisdiction was assumed by the common law courts, which began to use the same procedure with minor modifications to deal with the offence of contempt of court, which eventually became known as the “summary procedure”.
TYPES OF CONTEMPT AND STANDARD
Initially the common law courts only used the power to punish for contempt when the interference with the administration of justice was in the nature of a public wrong, which came to be known as Criminal Contempt.
However, in the 17th Century, the Court of Chancery began to use this power to compel obedience to its orders and decrees, issued to settle disputes between litigants. The exercise of this power by the Courts of Chancery, enforcing orders in personam came to be known as Civil Contempt.
The basis for the distinction is similar to that between crimes and torts in the law generally – between public and private wrongs – that is, in its character and purpose. For civil contempt, also known as “contempt in procedure”, the punishment is remedial and for the benefit of the complainant, whereas for criminal contempt, the act is one which so threatens the administration of justice that it requires punishment from a public point of view, which is punitive in nature.
The standard of proof for both types of contempt is beyond reasonable doubt. In the words of Lord Denning MR in the case of Re Bramblevale Ltd,
“A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must satisfactorily proved. To use the time – honoured phrase, it must be proved beyond reasonable doubt,”
In the more recent case of Dean v Dean, the Court of Appeal reiterated,
“It has long been recognised that the procedure in contempt is of a criminal nature and the case against the alleged contemnor must be proved to the criminal standard of proof.”
MAIN AREAS OF CONCERN:
The Judge, The Advocate, Witnesses
At common law absolute privilege attaches to any statement made by judges, witnesses and advocates during the course of judicial and quasi-judicial proceedings, the main exceptions being perjury and contempt of court. In Royal Aquarium v Parkinson Lopes LJ said,
“The authorities established beyond all question this: that neither party, witness, council, jury nor judge, can be put to answer – civilly or criminally for words spoken in office, that no action for libel or slander lies whether against judges, council, witnesses, or parties for words spoken in the course of any proceeding before any court recognised by law and this although the words were written or spoken maliciously, without justification or excuse, and from personal ill-will or anger against the party defamed. This “absolute privilege” has been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech exist”.
Its protection attaches to everything said in court and it must equally apply to the contents of documents tendered in court.
Any party, whoever he may be, who interferes with the administration of justice commits contempt.
There seems to be some uncertainty as to whether a judge can commit the offence of contempt of court and if so, whether a judge can be charged with such an offence. There is a specific provision in India’s Contempt of Court Act 1971, dealing with contempt by a judge:
Section 16: Contempt by judge, Magistrate or other person acting judicially
(1) Subject to the provisions of any law for the time being in force, a Judge Magistrate or any other person acting judicially shall also be liable for contempt of his own Court or of any other Court in the same manner as any other individual is liable and the provisions of this Act shall, so far as may be, apply accordingly.
In Malaysia too we have other provisions that recognize this, i.e. Chapter XI of the Penal Code under the heading Offences Against Public Justice, for example:
Section 219 “ Whoever being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report. Order, verdict or decision which he knows to be contrary to law, shall be punished with a term of imprisonment for a term which may extend to seven years, or with fine, or with both.”
Section 218 deals with a public servant framing an incorrect record or writing with intent to save a person from punishment or property from forfeiture.
Section 204 deals with destruction of document to prevent its production as evidence.
Section 21 defines “public servant” to include “every Judge”.
Section 19 states that the word “judge” denotes not only every person who is officially designated as a judge but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a judgement.
It would seem that both in India and Malaysia a judge may be charged with the offence of contempt of court or an offence against the public justice.
However there seems to be an overriding interest in protecting the independence of the judiciary in that a judge should not be subject to any form of pressure when dispensing justice, the Federal Constitution has provided that they be independent and that their conduct can only be called into question in very specific circumstances. A specific procedure is provided for in the Federal constitution to deal with any misconduct of the judge of the higher courts. To allow a judge to be subject to contempt of his own court may cause undue pressure on him and it may be abused as a means to interfere with the judge’s independence and impartiality.
On the other hand, removal or impeachment of a judge as provided for under the Constitution is an extreme step to be resorted to only in extraordinary situations and it will not be for the purpose of punishing a judge for committing contempt of his own court.
It is true that the independence of the judiciary is of critical importance and the separation of powers is essential to ensure the proper checks and balances of power. The other branches i.e. the executive and the legislature should not be allowed to criticise the conduct of a judge except as permitted in the Federal Constitution, so that he is able to adjudicate a dispute without fear or favour.
Nothing must be done to undermine this, but a mechanism must be provided for, in order to enable the public to complain about any misconduct of a judge, which interferes with the administration of justice, that may perhaps warrant a stern rebuke but not removal.
It must always be remembered that,
“Justice is not a cloistered virtue, she must be allowed to suffer scrutiny and respectful, even though outspoken, comments of ordinary men.”
The Law Reform Commission of Canada after an exhaustive study on the law of contempt, stated,
“The administration of justice and the judicial system should not be set apart, or be an exception. It is normal and important for all citizens to feel involved in their system of justice. It is healthy for them to be able to express their views on its imperfections and defects freely, without fear of reprisals, and to propose means of remedying them. Justice must be accessible to the people. It would be contrary to the very democratic process to deny them the right to criticize.”
To ensure that the independence of the judiciary from the other branches of government is intact, the complaint by a citizen must be made to the highest officer in the judiciary and merits or demerits of the complaint must be dealt with by judges of superior or equal standing of the judge complained against and the reprimand or punishment, whatever it may be, left to the absolute discretion of the judiciary.
In that wat both the interest of the independence of the judiciary and the need to correct an injustice or interference in the administration of justice by a Judge of the higher Courts is addressed.
Advocates, by the very nature of the role they play in the administration of justice, should only in the most extreme case, be subject to a change of contempt of court. They should not be charged or threatened with contempt proceedings for every breach of etiquette or negligence. There are specific provisions in the Legal Profession Act to address any complaint made by any person against an advocate for any breach or misconduct. These provisions should be resorted to, rather than the law of Contempt, in view of the advocate’s role in Court.
In the words of Gillard J, in Bretherton v Kaye,
“It is in the public interest that a person who is taking part or filling a role in litigation should be independent and encouraged to speak freely, so that the true facts may be ascertained, so that the credibility of witnesses may be accurately assessed, and so that a correct and just result is obtained in litigation.”
And in Rondel v Worsley, Lord Morris spoke in the same vein, i.e., that this privilege is designed to ensure that trials are conducted without “the avoidable stress and tensions of alarm and fear to those that have to play a part in them.”
An advocate does not espouse his own claim but that of his client i.e., a member of the public. It is essential, if there is to be a fair hearing, that an advocate appointed to act for a party is allowed the freedom to advance his client’s case with the minimum interference. It may be relevant to his client’s defence or claim to make serious allegations against the state or other authorities ( for example a defence that he was framed, or beaten by the police, to challenge the story or evidence of the police or state that the documents were forged, raise the defence of conspiracy or he may have to make an application to disqualify a judge or arbitrator, etc).
Further, to extract the truth, he may have to cross-examine with vigour and determination. In fact, to echo Lord Reid,
“Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case.”
The advocate must not be fettered. If the allegations are true, it is vital that it be aired in open court and investigated, on the other hand, if it were untrue, then the other party’s remedy is to disprove them rather than trying to prevent them from being made or to punish the maker for contempt.
Lord Denning, speaking of an advocate’s duty, said,
“Appearing as the appellant was, on behalf of an accused person, it was, as I understand it, his duty to take the point which he believed to be fairly arguable on behalf of his client. An advocate is not to usurp the function of a judge. He is not to determine what shall be the effect of a legal argument. He is not guilty of misconduct simply because he takes a point which the tribunal holds to be bad. He only becomes guilty of misconduct if he is dishonest. That is, if he knowingly takes a bad point and thereby deceives the court”
Because of the nature of the role played by the advocates, they must be given a wide degree of latitude and that anything less than “knowingly” and “dishonestly” done to deceive, however offensive or negligent, will not amount to misconduct. In Munster v Lamb, Brett MR said,
“…a counsel has a special need to have his mind clear from all anxiety. A counsel’s position is one of utmost difficulty. He is not to speak of which he knows; he is not called upon to consider whether the facts with which he is dealing are true or false. What he has to do is to argue as best he can, without degrading himself, in order to maintain the proposition, which will carry with either protection or remedy which he desires for his client. If amidst the difficulties of his position he were called upon during the heat of argument to consider whether what he says is relevant or irrelevant, he would have his mind so embarrassed that he could not do the duty which he is called upon to perform. For, more than a judge, infinitely more than a witness, he wants protection on the ground of benefit to the public. The rule of law is that what is said in the course of the administration of the law is privileged; and the reason of that rule covers counsel more that judges and or a witness.”
For this reason the filing of an application by an advocate, or a submission by him on a particular defence or point however distasteful or the citing of a case or the making of an application however irrelevant etc, should not be the subject matter of contempt proceedings. He only becomes guilty of misconduct in the most extreme case if he is dishonest and deceives the court.
Witnesses should be allowed the freedom to give their evidence with the least interference to ensure that the truth is arrived at and the justice is administered. What they say in court is also privileged. In Cabassi v Vila, Starke J said,
“the law protects witnesses and others not for their benefit but for a higher interest”.
And as Gaudron J, said
“Perjury, contempt and perverting the course of justice are offences which serves to protect the integrity of the judicial process. The privilege which attaches to statements made in the course of legal proceedings also serves important functions in relation to that process: it promotes resort to the courts”
Ultimately, a balance must be drawn between the following considerations-
- The use of the law of contempt instead of other legislation to protect the administration of justice; as against
- The importance of ensuring that every party, with the relevant safeguards and privileges provided by legislation 35 will be able to present their case without any interference;
- The right to personal liberty of the individual; and
- The right to freedom of speech and expression.
The Proposed Act
THE PROPOSED ACT
Our Federal Constitution, in Article 126, declares that
“The Federal Court,” the Court of Appeal or a High Court shall have power to punish contempt of itself”.
This is repeated in Section 13 of the Courts of Judicature Act 1964. Section 99A of the Subordinate Courts Act 1948 empowers the subordinate court to punish for contempt giving some instances in section 9 of the Third Schedule. Apart from these provisions many areas are still unclear as there is no specific statute or provision defining for example,
- What amounts to contempt;
- The sentence for contempt (maximum or minimum or when it is to be just a fine or caution etc);
- The relevant procedures (with the exception of Order 52 and Order 34 of the High Court and Subordinate Court Rules respectively;
- What defences are available;
- Whether the alleged contemnor has a right to be represented;
- Whether he is allowed to call witnesses and adduce evidence;
- Who initiates the complaint;
- Who prosecutes the offence
- Whether the judge who hears the complaint or charge can also prosecute, adjudicate, convict and sentence an alleged contemnor;
- Whether the rules of natural justice apply;
- Whether the safeguards of the adversarial system apply
At present, we follow the common law in trying to ascertain the ambit of the law on contempt and the procedure to be applied. Generally the procedure on Civil Contempt is laid down in the Rules of the High Court and the Rules of the Subordinate Court (Order 52 and 34 respectively). It is the area of Criminal Contempt that is wholly uncertain.
Both the Phillimore Committee and the Sanval Committee concluded that in this area, the law falls short of certainty and requires legislation.
The uncertainty in application and procedure in the law of contempt calls for legislation and the Bar Council of Malaysia has responded constructively by proposing a Contempt of Court Act, which is presently under consideration by the Attorney General’s chambers.