The Bar Council refers to the statement of the Y.A.A. the Chief Justice of the Federal Court in respect of the Malaysia Bar’s proposal to have a Contempt of Court Act as reported in a local newspaper (The Star, 6th April 1999).
The Bar Council is mindful of the provisions in the various statutes with regard to the law of contempt of court. What is provided in Article 126 of the Federal Constitution is only an empowering provision and in consequence Section 13 of the Courts of Judicature Act, 1964 and Clause 9 and 26 of the Third Schedule to the Subordinate Courts Act, 1948 merely state that any court has the power to punish any contempt of itself. There is no comprehensive stipulation anywhere of what is conduct amounting to contempt of court. The range of punishment for contempt in the superior courts, namely High Court, Court of Appeal and the Federal Court is also not stipulated.
With the recent spate of contempt cases under a variety of circumstances the need to define the law relating to contempt of court and to provide for certainty in its application, procedure and enforcement is essential for the members of the Bar to dispense their duty in representing the rights of litigants in court without fear or favour.
The present application of common law principles seriously suffers from two drawbacks in relation to the law on contempt of court. It confers a wide discretion on the judiciary to determine in any situation what amounts to contempt. As a result of the varying perception and approaches by the judiciary an uncertain situation is created. This is certainly not acceptable to the members of the Bar and the public, especially where the punishment for contempt is criminal in nature. This uncertainty in the use of contempt power can seriously affect the due representation of the rights of the litigants in court and thereby affect the administration of justice itself.
Article 10 of the Federal Constitution recognises freedom of speech as one of the fundamental liberties. Judiciary as a public institution should be open to comment and criticism for its overall improvement of the services it discharges to the public and to enhance the application and appreciation of the law.
The Commonwealth Statement on Freedom of Expression has duly recognised the need to statutorily define the law relating to contempt.
The Bar Council has therefore formulated a draft contempt of court legislation that seeks to define the law of contempt and its punishment and to set out a comprehensive procedure for dealing with contempt similar to that which has already been done in other Commonwealth jurisdictions. The Bar's proposal will be conveyed to the Government in due course.
Dated: 6th day of April 1999.
R. R. CHELVARAJAH
President
Malaysian Bar
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Contempt of Court Act
6 Apr 1999 12:00 am