CONTEMPT OF COURT AND THE JOURNALIST

M.G.G. Pillai

(These remarks I prepared for the Malaysian Bar Council's seminar on Contempt of Court this morning (23 September 00) at the Rennaissance Hotel, Kuala Lumpur)

CONTEMPT OF COURT, like defamation, takes centre stage in administering justice in Malaysia. This reflects not the primacy of justice, but fear of justice denied, however correct the judgement is. The courts do not exist in isolation. The administration of justice gets the respect it does not because it is constitutionally guaranteed or legally ordered, but by its acceptance by the people at large. An unquantifiable worldview of society that one can expect it, that those who seek justice can come away happy that what they sought, even if they did not succeed, was adequantely aired, and the better argument won. Citing legal remedies and procedures by counsel as contempt of court in ways that suggest that justice, even if correctly administered, could be tainted raises doubts about, not confidence in, the administration. Whether the courts have acted within their rights or jurisdiction is not the issue. But would justice be served with a liberal, often capricious application of contempt of court rules? Would manifest injustice in a few high profile cases disappear if the lawyers involved in them, or for that journalists reporting them, are cited for contempt of court, and suitably punished? Can contempt of court action enhance the administration of justice when doubts arise, however unfairly, about its integrity?

The Malaysian courts in recent years applied contempt of court rules not when the action hinders the administration of justice but when lawful actions in the course of representing clients seemingly demeans the dignity of the courts. But this reduces even lawyers to silence, with the larger intention of ensuring justice be done reduced to mere words of intention. Lawyers, in representing their clients, hesitate to actions which could be in their favour for their fear of being cited for contempt.

Indeed two lawyers, including a former president of the Malaysian bar, could well face imprisonment, and the current president cited for a legal manouevre on behalf of his client though that was later dropped. When courts liberally rely on contempt of court proceedings to prevent a lawyer from defending his client to the best of his ability, which is the chilling effect of such capricious use of this law, it ensures not the dignity of justice and judges but of capriciousness which demean the administration of the law. Many lawyers of my acquaintance shy away from any action, even if in the interest of their clients, which could have them be cited for contempt.

In this assiduous protection of its turf, the judiciary allows no criticism, no questioning, no second guessing of its decision. This raises the frightening possibility of contempt of court used to curtail criticism and dissent, restricting the rights of those who appear before it and willy nilly bringind the dispensing of justice under the rule of law to rule by law. Contempt of court therefore becomes a useful weapon to inhibit criticism of the courts. The prominent Indian lawyer, Mr Soli Sorabjee, even argued once that administration of justice should not be subject to contempt of court proceedings, for that is an early warning call that something is amiss. This should not attract contempt of court proceedings, he thought, and should be limited to the obvious instances of causing deliberate mayhem in the courtroom, like throwing an ink bottle or ruler at the judge. In other words, criticism of the judicial process should not be subject to contempt of court. The Malaysian courts, on current practice, reject this view.

That it does magnifies the frosty relations the Malaysian Bar had with the judiciary. Despite frequent attempts to bridge the differences, it remains. And adds to the Us Versus Them frame in which each views the other. I would suggest, with respect, some, if not more, blame should attach to each. The Saleh Abas affair, in 1988, brought the judiciary and the Bar at loggerheads, one which survives to this day. Neither the chief justice nor the presidents of the Bar could resolve their differences. Both viewed the affair contentiously, making a rapprochement difficult.

This has had a chilling effect in the overall administration in which the judiciary is not alone to blame. The Anwar Ibrahim affair came in between, to widen the gulf. In my view, this cannot resolve itself until the key players in this unfortunate drama leave the scene. The ridiculous position the Malaysian Bar finds itself in, having to pay hundreds of thousands of ringgit in costs for failed applications to run its affairs, and in forcing it to cancel discussions about the administration of justice because of the possibility of being cited for contempt has far reaching consequences that cannot but redound on the judiciary itself.

So, the present liberal use of contempt of court has its roots in matters beyond the pale and rarely discussed. There is no serious discussion of what caused all this, how it could be resolved. That cannot, because of this ill-disguised contempt, not to put a fine point to it, each has for the other. The liberal use of the contempt of court rules, with lawyers the main casualties, raises the ire, and doubts about the infallibility of Malaysian justice even more. If this continues, it would not be long before its net is widened to include any even marginally involved with the courts. Journalists would naturally be brought into its ambit, the common practice of shooting the messenger reflected already in the high defmation damages against them. This would not surprise. The Court of the Star Chamber, Common Law's Spanish Inquisition, liberally applied contempt of court to all and sundry in 16th century England with a capriciousness that lawyers and civil libertarians could well happen if proper legislation is not enacted to prevent it. The courts, then as now, dominate and enforce its power with its contempt of court orders. It is, as I said, a natural fallout in a system which crumbles -- not just the judiciary but every arm of government. The larger political uncertainties cast a pall over the judiciary's travails. This is not addressed as it should. Not even, may I add with respect, my good friend, the de facto minister of justice, Dato' Rais Yatim, who is here with us today.

This worries me, as a journalist. The press has an unsavoury reputation, some of which justified, but its role as the messenger of bad tidings keeps in contempt with those who disagree, or misunderstands, its role. Even Alexis de Tocqueville in his "Democracy in America", written in 1836 but as relevant in this day, voiced his concerns:

"I admit that I do not feel toward freedom of the press the complete and instantaneous love which one affords to things by their nature supremely good. I love it more from considering the evils it prevents than on account of the good it does."

The last sentence does is not relevant here, not when they are saddled with millions of ringgit in defamation damages they do not have. In this climate, the Malaysian journalist must be worried about the fallout from this present confrontation in the courts. So far no journalist has been cited for contempt: it is easier, and perhaps more profitable, to sue the publication for defamation. But the possibility should not be excluded. It comes with the territory. I see it as an inevitable fallout of current circumstances in which, on the surface, the most seemingly institution functioning is the judiciary, and it shows it is. Contempt of court is one weapon in its armoury to make that felt. It is, in other words, a power play. It has become, in a real way, a test of wills.

This raises my principal worry about the proposed Contempt of Court legislation. The government and the Malaysian Bar Council have decided, rightly, that the circumstances under which the courts can initiate contempt proceedings must be within well-defined rules, to prevent judges from capriciously using this power to frighten or threaten.

Nothing I have read or heard suggests that the judiciary is not a party to this proposed Act. If this legislation is passed, it widens the differences yet again between the judiciary on the one hand and the Executive and the Malaysian Bar on the other. The proposed legislation is well crafted, is concomittant with similar legislation in other Commonwealth jurisidictions, there is much to commend it, but in the present circumstances, I regret to say, misplaced. For, as I have inferred, the issue is not to prevent capricious judicial use of contempt of court rules, but the far larger political overview which found common cause between the Bar and the de facto minister of justice. I believe in fewer, not more, laws. The judiciary to function effectively must be given leeway to act within its ambit. Its right to impose a sentence of its choice is taken away from it. The mandatory death penalities for drug trafficking and other mandatory sentences, which the Bar at the time rightly protested against, nevertheless imposed on the judiciary a moral dilemma: extraneous circumstances did not count, and if guilty, only one mandatory sentence. My view, then and now, is the judiciary should not be put into this straitjacket.

Nor should a Contempt of Court legislation be forced upon it. If the chief justice and the judges want such a legislation, or, if they do not want it, be consulted about it, and it should be presented to Parliament as the joint effort of the judiciary, the Bar and the government. One should not, in this attempt to ensure fair play, drag the judicial noses to the ground. It only prolong the agony. The Bar is justifiably concerned with its members being cited for contempt, and imaginative legal arguments used to prevent it discussing matters of common interest. But I can argue that that should not be why there should be this legislation. I tread on dangerous ground. But I suspect this legislation has not been properly thought out -- not on its contents, but of the larger political millieu. I still talk not of the proposed bill itself -- this in any case would have to refined in discussions with the Attorney-General's Chambers -- but of the general circumstances which surround it which, in my view, is more important. The Bar Council unfortunately still thinks of piece-meal plaster casts than holistically.

Political correctness is all good and proper. I accept the argument that this legislation follows similar legislation elsewhere in the Commonwealth. But when it is viewed, as it must, as a followup to a larger problem, it becomes the proverbial red rag to the judicial bull. Do we need that? This proposed legislation, it seems to me, should not be presented now, but when it is not perceived to be an attempt to rein in the judiciary.

The judiciary's paradoxical insecurities amidst its primus inter pares role in the institutions of government gives it a power, as it did the Court of the Star Chamber and the Spanish Inquisition. I submit this reflects the times, not a reflection on the administration of justice itself. It is, to put it tritely, a growing-up process, an inevitable sling and arrow of institutional history. The judiciary goes through a bad patch. Much of the criticism hurled at it probably justified, but one should be careful not to throw the baby out with the bath water. Nothing stays still. The judiciary's role is little different from the other institutions, but its shortcomings loom large because it involves the civic and civil rights of individuals. There is no judicial collossus on the bench as we once had. But then there is no political collossus now as we once had. We have to look at it in the light of changing circumtances, and just as the Court of the Star Chamber made the mistakes that ensured the primacy of the rule of law in the United Kingdom, so it must here. I am, as you would all know, a victim of that injustice. But that does not mean I do not believe in the ultimate resurgence of the administration of justice. What comes down must go up. It is the natural evolution of life.

I did not deliberately address the contents of the Act itself. I have explained why. Besides, there are legal brains aplenty who have contributed to the nuts and bolts of it. There is nothing wrong with the proposed recommendations. Many of its provisions have been tested in Commonwealth jurisidctions where there already exist Contempt of Court legislation. I am more concerned about the timing and circumstances that led to this. In the present circumstances, do we need one? There already exist adequate provisions in the law to take care of the misdemeanours of contempt. But I shall make a few general observations on the recommendations. This talks of a civil prison, to distinguish from a criminal prison. The intentions are good. A fine of RM2,000, for instance, bars a man from standing as a candidate for Parliament or the state assembly. This law would allow if the offence is civil contempt.

This raises larger issues of special privileges. Political correctness and reality often work from opposing positions. But that is not assumed in this recommendations. Much of the administration of not just justice is enveloped in a mystique necessary to make its presence felt. Many here would disagree. But it is real politik that rules the day, not political correctness. The Bar Council would have earned much kudos if it had undertaken this as the forerunning of several more in other areas of the administration of justice. That would have lifted this into the higher plane, which would remove the current threat and resistance, not just from the man-on-the-street but from others concerned about the current state of the administration of justice.