THE CONTEMPT POWER: A SWORD OR A SHIELD? – A STUDY OF THE LAW AND PRACTICE OF CONTEMPT OF COURT IN MALAYSIA.

Abstract

The issue relating to contempt of court has caught the attention of people from all walks of life in Malaysia, particularly, after the controversial incidents of the removal of Tun Salleh Abbas, the then Lord President, in 1988 and the dismissal of the former Deputy Prime Minister, Dato’ Seri Anwar Ibrahim, in 1998. The judiciary is attacked and its independence is questioned. The lawyers are placed under the threat of contempt proceedings when they tried to exercise their right to freedom of speech and expression and to exercise their duty to act for their clients without fear or favour. The Bar feels that the right to freedom of speech and expression is infringed. The Bar perceives that the contempt power was being misused by the judges.

The Malaysian law of contempt of court is derived from the English common law tradition and is characterised by substantial flexibility. This flexibility results in variable approaches and perceptions by judges that leave uncertainties in this area of law. Consequently, a draft of Contempt of Court Act 1999 has been proposed to the Malaysian government with the main intention of overcoming uncertainties in the law. Placing the comprehensive rules in a statute will allow easier access to and greater clarity of the law because all the rules and procedures would be found in one piece of legislation.

This thesis aims to state and explain the law and the practice of contempt of court in Malaysia. This study will examine the anomalies that derived from the substantial flexibility approaches by the judges in this area of law. Thorough examination and analysis would help identifying the problems and dilemma and the way that the draft Contempt of Court Act 1999 could provide remedies for the predicaments. To illuminate the understanding of the actual practical problem, this study incorporates in-depth interviews together with questionnaire surveys. A total of 15 in-depth interviews have been conducted among the Malaysian judicial officers, advocates and prosecutors. This is further complemented by postal questionnaires sent to these selected legal actors chosen at random in accordance with their seniority, aiming at eliciting their knowledge and opinion on the subject matter at hand. The combinations of theoretical discussion on contempt of court, together with the empirical study, have proved to yield a valuable insight into the re-evaluation of the Malaysian law and practice of contempt of court.

This research reveals that the uncertainties in the law of contempt of court in Malaysia were ‘caused’ by the inconsistencies in the application and approaches by the judges. The judges have unfettered discretion in determining contempt cases. The majority of the Malaysian legal actors support the idea of placing the law of contempt in a piece of legislation in order to overcome these arbitrariness and uncertainties. They hold that to have credence, the law of contempt would have to be well-defined, as in the absence of any clear guidelines it would be unmerited to imprison anyone for contempt.