The Commonwealth Lawyer. June, 1995
The Right to Silence in the United Kingdom and Malaysia By Jerald Allen Gomez
The author practices as an advocate in Kuala Lumpur Malaysia and took part in the 1994 Commonwealth Young Lawyers Course. The position in England and Wales as described in this article is that which existed prior to the Criminal Justice Act 1994.
Introduction
The right to silence can be viewed from various perspectives as it envelopes other legal principles which are intertwined into the fabric of the whole criminal justice system.
The right to silence encompasses two major basic principles of law, the privileged between self-incrimination and the presumption of innocence. The former means that “no man will be forced to give incriminating evidence against himself”. Lord Mustill has however in the recent House of Lords decision in R v Director of Serious Fraud Office exparte Smith the view that the right of silence historically was never linked to the privilege against self-incrimination but was rather a development of law relating to admissibility of confessions. Though there may appear to be a dichotomy between the two as to its development, for our purpose it is sufficient to say that at the present time the right to silence encompasses the privilege against self-incrimination.
The presumption of innocence is that the accused starts off with a presumption in his favour that he is innocent until proven guilty. It needs no further explanation. Having that in mind, if we look if we look at the whole issue of abolishing the right to silence we find that it boils down to one fact “Who must prove what”. As regards the burden of proof, in the words of Lord Sankey in DPP v Woolmington:
“Throughout the web of the English Criminal Law, one golden thread is always seen, that it is for the prosecution to prove the prisoner’s guilt beyond reasonable doubt”.
The abolition of the right to silence by whatever means is, in reality, a shifting of the burden of proof, a tipping of the delicate balance of the scales of justice in favour of the prosecution. Arguing that it is not the abolition of the right to silence, but a curtailing of that right which is presently sought, is indulging in intellectual gymnastic and is of no practical significance. It is my view that once the court is allowed to infer guilt from silence, the right no longer exist.
Even if we take the proposal of the Lord Chief Justice of England, Lord Taylor, that similar provisions to those of Northern Ireland be adopted, curtailing the right to silence in certain circumstances, it would be forcing the accused (as stated by Roger Ede, Secretary to the Criminal Law Committee of the Law Society of England and Wales) to play Russian roulette. An accused will not know which questions to answer and which not. Since similar provisions to those in Northern Ireland received the most support from the House of Commons and the House of Lords, let us examine these provisions and how they came about.
The Right to Silence in Northern Ireland
Basically this involves two stages: the first being a pre-trial stage, i.e. the police investigation stage, and the second being the trial stage, meaning that the prosecution has proved a prima facie and the accused is called to make his defence.
Pursuant to the Criminal Evidence (NI) Order 1988, the Northern Ireland position is that under four different situations, an adverse inference can be drawn against the accused if he chooses to remain silent, three of which involves the pre-trial stage:
These provisions may seem specific at a glance, but upon proper consideration what is reasonable, or what constitutes an account, covers a very wide area which I shall attempt to highlight.
This provision in Northern Ireland came into being by an Order of Council, a piece of subsidiary legislation brought about by the then Secretary of State, Mr Tom King, and not by an Act of Parliament which would have subjected it to vigorous debate and scrutiny. It was passed because there was an urgent need to deal with the problem of those charged with terrorist activities relying on their right to silence.
The police and security forces claimed that they could not gather sufficient evidence to warrant conviction without abolishing the right. They wanted those accused of terrorism to give them evidence by confession or information, or to allow an adverse inference to be drawn from their silence, to prove guilt. That was the basis and excuse; that these terrorists were so well trained in exercising their right to silence. The question to be asked is, “What good is a right if you are not allowed to exercise it?” Furthermore, although the legislation was targeted as a specific group of people charged with terrorist offences, it had general application in all criminal cases (whether or not there was any connection with acts of terrorism). The abolition of the right in respect of members of the public in general was not justified.
This Order in Council has been in force for over six years and has been the subject of a report in “Justice” which has been summarised as follows:
“Restrictions on Criminal suspects right to silence for the last six years in Northern Ireland are unsafe and inefficient according to a research report by “Justice”. The report states that the order is used to put pressure on suspects to speak and this has an unfair impact on the vulnerable as well as those who may have reasons for not speaking, such as being suspicious of the police, wishing to protect family members or fearing intimidation. Ulster solicitors commenting to researchers broadly came down against the right to silence restrictions. “The police are using the order to frighten the daylights out of people”, said one.
Thus people fear that if they do not answer the questions put by the police and adverse inference may be drawn against them.
When we speak of the right to silence it does not just mean that an accused is under no legal obligation to speak to the police or to give evidence in court, but it implies that no disadvantages will be attached to the accused’s refusal to co-operate with the police or to testify. In other words, it means that no tribunal or fact, whether juries, judges or magistrates, should be allowed or encouraged to conclude that an accused is guilty merely because he refused to respond to allegations or refused to testify. This is not the case in Northern Ireland.
England and Wales
As for England and Wales, though there have been a few inroads to the Woolmington Principle, the law on the right to silence and burden of proof remained the same.
In a case decided in April 1990, the Court of appeal quashed convictions of the Winchester 3 (Marina Shanahan, Finbar Cullen and John McCann? Found guilty of a conspiracy to murderer Mr Tom King, the then Secretary of State for Northern Ireland, at his home. Two of the accused remained silent and refused to answer the police and all refused to testify in court. The Court of Appeal held that the trial judge should have discharged the jury and ordered a retrial because of the risk that widely broadcast remarks by My King and Lord Denning that “Silence is the refuge of the guilty”, could have prejudiced the proceedings.
If we take a look at the United States of America, which also has an adversarial system, we find that these principles are even more strictly applied. The silence of an accused cannot be the subject of adverse comment.
The right to silence was and is a major constitutional landmark in the USA, as opposed to the English common law where the right slowly crept in. there are a number of theories as to how the right to silence crept into English Law.
First, we have Wigmore’s theory that the right to silence gained acceptance in the early17th Century in response to forced interrogation and arbitrary power of the courts like the “Star Chamber” and Ecclesiastical courts. Methods used by these courts included torture, mutilations, forfeiture and imprisonment. These courts were the source of censorship by the monarch of any political works or any unorthodox religious ideas until their abolition in 1641.
It was in these circumstances that the right to silence emerged to protect the accused, as one of the most significant features of these courts were that interrogation constituted a fishing expedition. Instead of being confronted with a particular charge by a complainant, the accused was compelled to speak on oath before being charged in the hope that he would come forth with an incriminating statement. The principle “nemo debet”, meaning that not man should be compelled to give evidence against himself, emerged as a protection against such courts and improper procedures, and was eventually extended to and adopted by the Common Law courts, which had established their supremacy by 1660.
Another theory is that of MacNair, who is the view that Wigmore had put the cart before the horse. MacNair states that this right originated from Roman Canon Law, applying first to allegations of crime in civil proceedings before being extended to the accused in criminal trials. This came about through Roman Canon Law tradition and religious objections to compulsory testimony.
The Criminal Law Revision Committee in their Eleventh Report stated that the right to silence in Common Law did not fully emerge until the early 19th Century, when courts attempted to offset the disadvantage to the accused caused by the prohibition against defendant’s testimony, poor quality of juries, magistrates and legal representation and the haste in which cases were concluded. There was judicial recognition that a balance had to be struck between the power of the State and the rights of the individuals.
Whatever theory one may be inclined to believe, it appears that the right to silence is an essential safeguard against power and ensures a fair trial in the context of an adversarial system.
Arguments for Abolition of Right to Silence
There are many arguments advanced for abolishing the right to silence. I have limited this paper to three arguments which I believe are the most persuasive, though I am not in agreement with them. These three arguments all relate to the pre-trial stage. At the trial stage, in a Court room atmosphere, in full public view, after legal advice, before judges, juries, etc, I find less difficulty in accepting a curtailment of the right to silence if there must be one.
Now for the three arguments stated, not in the order of importance but for the purpose of clarity.
The first argument is that the right to silence evolved as a protection against court like the Star Chamber and methods used by them to extract evidence or confessions which became the basis of conviction. Today, it is said, torture and compulsion no longer exist, therefore the right to silence no longer serves its purpose and therefore can be abolished. In fact the Chief Justice of England, Lord Taylor, when asked at a public meeting at Gray’s Inn, “What was the preponderance of judicial reasoning and jurisprudence that warranted the abolition of the right to silence?”, answered that it was safer now for the accused, the whole interview will be tape recorded, etc.
It is argued that, now that there is tape recording of police interviews, opportunities for the police to bring excessive pressures to bear on the accused no longer occur, as Lord Taylor would like to believe. I doubt so. The police have a very wide discretion on how investigations are carried out and have various means and tactics available, though these may not always be used, to get the suspect or accused to say exactly what they want to hear. Often the nature of the charge will be used as an inducement for the accused to co-operate. Normally the accused will co-operate and opt for a lesser charge.
The length of time of detention, threats that family members will be involved in the investigations if they do not co-operate, and the improvements of the conditions of detention as the suspect/accused cooperates are other means of securing information and evidence from a suspect. There is a psychological pressure to speak. Most people feel a social pressure to speak when asked questions. It takes a very strong will to remain silent in the face of sustained questioning. There is also considerable pressure to speak by the structure of police interrogations, the apprehension of the charge and sentence, the embarrassment of continued detention, etc. there are various other means and tactics used by the police that no tape recorder can prevent if the police choose to do so.
The second argument is that of “ambush defences”. These are defences which take the prosecution by surprise during trial, allowing insufficient time for the preparation of the prosecution’s case and consequently, it is argued, leads to wrongful acquittals. It is argued that alibi defences, consent to rape, innocent associations, belief that the goods were not stolen (on a charge of handling stolen property) and self-defence in a robbery are all ambush defences. Alibi defence may be an ambush defence. It does take the prosecution by surprise but statute has already dealt with these problems in that there are procedural changes making it necessary for the accused to give the prosecution sufficient notice if an alibi defence is to be relied on. I am of the view that the others cannot be termed ambush defences. Anyone investigating a rape case (excluding statutory rape) would most certainly ensure and confirm form the complainant and forensic evidence that her consent was not obtained. Most cases of rape are decided on this issue of whether there was consent. To say that the defence of consent comes as a surprise in unacceptable.
Innocent association is the same. Normally in a charge of indecent assault on a child he or she is taken to a private place. The issue again is “for what purpose?” Normally the defence is innocent association, “I was helping him/her find a toy etc”. On the charge of handling stolen property, again it cannot be said that the defence of having no knowledge that the goods were stolen in an ambush defence. The same goes for the others. The prosecution and police know the ingredients of the offences and mostly the defences are obvious and cannot be said to be an ambush defence. I see no merit in this argument for the abolition of the right to silence.
The third argument is actually the real basis for this move by the authorities to change the status quo. There has been a change of view or thinking by some quarters from what used to be the view and thinking of our predecessors. To put it simply in a nutshell, it is the view taken by Betham when he states that:
“Innocence claims the right to speak as guilt invokes the right to silence”.
Lord Denning echoes this as stated earlier:
“Silence is the refuge of the guilty”.
The view is based on the premise that there can be no other reason why a person remains silent, other than guilt. To put it another way, in stronger terms, once a person remains silent in the face of accusations, he is guilty.
I cannot accept that those accused and who choose to remain silent do so only because they are guilty. There are various examples in history and in hindsight we can see that many people remain silent for various other reasons when faced with a charge and not because they are guilty.
The best example was that of Jesus Christ himself. When charged before the governor Pontius Pilate, He chose to remain silent. I quote Matthew 27 verses 11 to 14:
“Now Jesus stood before the governor and the governor asked Him, “ Are you the king of the Jews?”. Jesus said, “You said so,”. But when he was accused by the Chief Priest and elders he made no answer. Then Pilate said to him, “Do you not hear how many things they testify against you?”. But he gave no answer, not even to a single charge; so that the Governor wondered greatly.”
He was exercising His right to silence and there can be no question as to His innocence.
I have attempted to list below some of the reasons why an accused charged with an offence may choose to remain silent.
There are many more reasons why a person remains silent and it is certainly not true to say that only the guilty will seek the refuge of silence or invoke the right to silence. All three arguments which seemed to be the most persuasive are insufficient to warrant the abolishing of right to silence.
Malaysia
Now I will touch briefly on the Malaysian position. This is similar to that of England with a few variations. The accused has the right to silence from the police investigation stage and throughout the trial. No adverse inference can be drawn against him for exercising his rights to silence. The Miranda warning is used and the courts will not admit as evidence any statement made by the accused to the police if there is a doubt as to its voluntariness. If there is any inducement, threat or promise of any nature and, more recently, oppressive behaviour by the police of any kind, the whole statement or confession of the accused is ruled inadmissible. There is however, one exception which is that if the statement. Though extracted illegally, leads to the discovery of a weapon or subject matter of crime, the court would permit so much of that statement only to be admitted as evidence against the accused. Other than that, the right to silence is safely intact at the pre-trial stage and protected by the rules of admissibility of evidence.
At the trial stage, however, we have had some interesting developments. The law, prior to Privy Council’s decision in the Haw Tua Tua case in 1981, had been that the prosecution must prove the guilt of the accused beyond reasonable doubt before the defence is called. Lord Diplock, however, in that case, while interpreting the provision of the Criminal Procedure Code, stated that:
“…so long as there is some evidence not inherently incredible, like the cow jumped over the moon, pointing towards the guilt of the accused,…the accused must be called to make his defence. If he elects to remain silent, then the Court must consider the evidence again as a whole and determine whether the case has been proven beyond reasonable doubt”.
There was much confusion in Malaysia after this decision. The Supreme Court of Malaysia in Khoo Hi Chiang v Public Prosecutor, 1994 Malaysia Law Reports, had been referred this question of law. Supreme Court Judge Edgar Joseph held that the duty of the Court at the close of the prosecution’s case is to undertake not a minimal evaluation of evidence tendered by the prosecution in order to determine whether or not the prosecution evidence is inherently incredible, i.e. the Huw Tua Tua test, but a maximum evaluation of such evidence to determine whether or not the prosecution had established the charge against the accused beyond all reasonable doubt. The court’s view was based on the construction of Section 180 of our Criminal Procedure Act which reads:
“When the case for the prosecution is concluded, the court , if it finds that no case against the accused has been made out which if unrebutted would warrant his conviction, shall record an order for acquittal or, if it does not so find, shall call on the accused to make his defence.”
The supreme Court held that the words “if unrebutted would warrant a conviction” mean a burden of beyond reasonable doubt at the stage of the prosecution itself.
The question is, what has that to do with the right to silence? In a way nothing and yet in another way everything. The right to silence during trial, after the close of the prosecution case and once upon to make his defence, no longer exists. Should the accused remain silent, he will be convicted. He would have to speak or tender some evidence to raise a doubt in order to secure an acquittal. And yet the accused need not say anything, and simply wait for the prosecution to prove its case beyond reasonable doubt, at what is now in Malaysia as the prima facie stage
Conclusion
I am of the view that one cannot look at the right to silence in isolation as it is so intertwined with the fabric of criminal law and the adversarial system. It is the adversarial process which brings about a confrontational attitude between the police and prosecution against the suspect and defence council. There is a mutual lack of trust and mutual non-disclosure. In reality, the police use their authority which the law provides, and discretion in areas not specified by law, to secure evidence which is useful only for the prosecution. The defence has to work and investigate on its own. This is evident in any jurisdiction with the adversarial system. It is hoped that, in the contest between the prosecution and the defence, the truth will emerge. Thus the right to silence and the adversarial system go hand in hand to maintain a delicate balance of the scales of justice, defining the limits of state power vis-‘a-vis the citizen and ensuring a fair trial and a conviction based on evidence. Abolishing one or the other would leave us with an unbalanced system. Some may prefer an unbalanced system; their view is decided by a philosophy that the guilty must be punished at whatever cost.
After all is said and done, the right to silence revolves around this philosophical question: whether you believe that it is better to allow ten guilty persons to go free than to punish one innocent person. The law so far has been based on that premise. That is why we have the right to silence, the presumption of innocence and the burden of proof beyond reasonable doubt. On this premise it is true to say the burden on the prosecution is a heavy one and the law favours the accused in the sense that the right to silence does not make the investigative process of the police any easier or improve the certainty of all criminals being brought to justice. But it does try to ensure that the innocent will not be punished along with the guilty.
The Right to Silence in the United Kingdom and MalaysiaInsaf – The Journal of the Malaysian Bar
Contempt of Court By Jerald Allen Gomez
INTRODUCTION
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.
1.The Judge
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.
2.The Advocate
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.
3.Witness
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 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,
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.
Insaf – Contempt of Court