Freedom of Expression and Rights of the Accused
© Chew Swee Yoke
Advocate & Solicitor
S.Y. Chew & Co.
11th Malaysian Law Conference
8-10 November 2001
Kuala Lumpur, Malaysia
1. Between 1991 and 1998, the Bar Council noticed a marked increase in the exercise of the Court's discretion against lawyers, in which there were several cases of custodial sentences being imposed in addition to fines while several other lawyers were placed under threat of contempt proceedings . At one point, the Chief Justice issued a statement that contempt powers could be invoked against lawyers who failed to attend court on the scheduled date of hearing.
2. Against this background, the Bar Council Special Committee on Contempt Against Lawyers was set up in January 1999 which conducted a survey of cases of contempt involving lawyers in the Commonwealth from 1996 onwards. The end result was a Memorandum on "The Need to Define the Law of Contempt and To Provide for Certainty in Its Application and Enforcement". The Memorandum also included a Draft Contempt of Courts Act 1999. The Draft Act sought to define the law of contempt, the scope of punishment and comprehensive procedure for dealing with contempt. The Memorandum was submitted to the Prime Minister on 30th July 1999, to the Attorney-General on 9th August 1999 and to the Deputy Prime Minister on 10th August 1999. To-date, however, there is still no Act enacted.
The Bar Under Siege
3. The year 2000 was a low point in the bizarre development of contempt cases in Malaysia and saw a sinister assault on our fundamental right of freedom of speech.
In the case of Raja Segaran a/l Krishnan v. Bar Council & 2 Ors (hereinafter called "Raja Segaran No.1") reported in  1 AMR 540, a member of the Bar was granted a interlocutory injunction to restrain the holding of the EGM of the Malaysian Bar and with this, what restrained the Bar was the consequential penalty for contempt of court if the Bar were to proceed with the EGM.
The plaintiff even threatened to apply for another injunction if the Bar Council went ahead with a proposed discussion on 20th January 2000 with some 25 members of the Bar on this decision. The Bar Council replied to the plaintiff "that the proposed discussion is a private discussion confined to 25 members of the Bar who are also litigants and as such the discussion is, therefore, not contempt of court". Of course the plaintiff had to back down, The Bar Council had called his bluff. But it is a sign of the times that he even contemplated it in the first place! That, however, was not the end of this sad period of the history of the Bar .
The first injunction obtained by the said plaintiff was granted in November 1999 to stop the Bar EGM from discussing allegations against Judges and the Judiciary (Raja Segaran No.1). He obtained a second injunction in a second suit against Bar Malaysia & 11 Ors reported in  4 AMR 4971, to stop the EGM scheduled for 23rd June 2000 from discussing the integrity and independence of the Judiciary (hereinafter called "Raja Segaran No. 2"). The EGM was to discuss the motion that the Government set up a tribunal or a Royal Commission of Inquiry to investigate the alleged improper conduct of the then Chief Justice Tun Mohd Eusoff Chin's holiday in New Zealand, purportedly with lawyer Datuk V.K. Lingam. A preliminary objection was raised in Raja Segaran No. 2 on the ground that the judge should not hear the case as his son was a member of the Bar and he therefore had a vested interest. In support of this, counsel for the Bar Council cited the English case of Lockabail (UK) Ltd v. Bayfield Properties  2 WLR 870 at page 882 which reads:
"In any case where the Judge's interest is said to derive from the interest of the spouse, partner or other family member, the link must be so close and direct as to render the interest of that other person, for all practical purposes, indistinguishable from an interest of the Judge himself".
Now follows the extraordinary part of the hearing. The judge asked if all the defendants had instructed the counsel to cite the case. The Bar President Haji Sulaiman admitted that he as the Chief Executive Officer of the Bar had instructed counsel to submit on this point. For this, he was cited for contempt of court! Subsequently, the judge did not make any finding of contempt against the Bar President. It is difficult to understand how he could have cited the Bar President for contempt of court in the said circumstances, and how he could have justified it, if he did indeed find the President guilty of contempt .
In March 2000, a lawyer who appeared in court without a practising certificate was asked to show cause why he should not be committed for contempt in the face of the court. He was found guilty of contempt and sentenced to 6 months imprisonment . This case shook a lot of lawyers who had taken things for granted. Too many busy lawyers had too often overlooked the important requirement of applying and obtaining a practising certificate in good time. This was another low point for the Bar but in a different sense from the earlier episodes cited.
4. In my view, the above episodes (not including the case regarding the lawyer without a practising certificate) illustrate an insidious assault on the freedom of speech of the Bar as a whole and of the citizens of this country. These episodes made a mockery of Article 10 of the Constitution on freedom of speech.
In Appendix 6 of the IBA Special Issue on "Justice in Jeopardy: Malaysia 2000" Andrew Nicol QC's comment on the use of the contempt power in Malaysia in the context of international human rights law, said this enthusiastic use of the power to punish for contempt conflicts with two vital principles which are universally recognized in international human rights instruments - the right to a fair trial and the right to freedom of expression. He cited Article 14(1) of the International Covenant on Civil and Political Rights which guarantees a fair and public hearing by a competent, independent and impartial tribunal and reminded that a criminal defendant has an express right to defend himself through a legal representative of his own choosing and the same is implicitly contained in the right of civil litigants to a fair hearing. He says:
"There can be no fair hearing and legal representation cannot be effective unless a party's advocate is free to advance all arguments and lead admissible evidence which can reasonably be said to support the client's case. It is the recognition that lawyers must have this freedom which lies behind the absolute privilege which they enjoy (in the common law system at least) against actions for defamation for anything said or done in court.
… As Lord Atkin said in Ambard v Attorney-General for Trinidad & Tobago  AC 322, 335: 'Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even outspoken, comments of ordinary men.' An advocate who is properly conducting himself may sometimes need to argue that the judge has been guilty of unjudicious conduct, but this is not to be automatically equated with contempt of court. Likewise, it must be open to a litigant or advocate to make reasoned submissions as to why a particular judge will either be actually biased or why there may be the appearance of bias. Without this, there would be no effective remedy for a potential infringement of the right to an "impartial tribunal."
Andrew Nicol also cited the Judicial Committee of the Privy Council in Abnee v. DPP  2 IU/C 1305 on the offence of "scandalising the court" where Lord Steyn reminded that the offence was solely to protect the administration of justice rather than the feelings of judges, and goes on to say :
"There must be a real risk of undermining public confidence in the administration of justice. The field of application of the offence is also narrowed by the need in a democratic society for public scrutiny of the conduct of judges, and for the right of citizens to comment on matters of public concern. There is available to a defendant a defence based on the right of criticising, in good faith in private or public, the public act done in the seat of justice…The classic imputation of such an offence is the imputation of improper motives to a judge. But so far as Ambard's case may suggest that such conduct invariably be an offence their Lordships consider that such an absolute statement is not nowadays acceptable. For example, if a judge descends into the arena and embarks on extensive and plainly biased questioning of a defendant in a criminal trial, a criticism of bias may not be an offence. The exposure and criticism of such conduct would be in the public interest. On this point their Lordships prefer the view of the Australian courts that such conduct is not necessarily an offence: R v. Nicholls  12 CLR 280."
Andrew Nicol has pointed out that scandalizing the court is controversial because it is often invoked by summary procedure whereby the judge acts as prosecutor and judge in a more or less immediate trial of the accused contemnor, and that it is very difficult to reconcile this with Article 14 of the International Covenant on Civil and Political Rights and the comparable Article 6 of the European Convention of Human Rights.
5. The citation of contempt in some of the Malaysian cases highlighted in Appendix A have arisen in circumstances in which the conduct of the judge has been highly questionable. This immediately brings to mind Chapter XI of the Malaysian Penal Code under the heading 'Offences Against Public Justice' under which there are the following interesting sections:
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.
Section 16 in India's Contempt of Court Act 1971 enables a judge, Magistrate or any person acting judicially to be charged with the offence of contempt of court, and in Malaysia, under the above sections from the Penal Code, a judge may be charged with the offence against public justice .
6. While it is obvious that the administration of justice must be preserved free from improper interference and obstruction and the courts have a significant role in that, there is also the need to preserve the fundamental liberties of the citizen who is caught in the wheels of justice. This is the fine balancing act. Probably the courts will use the same balancing act which they have done so in other situations involving conflicting interests such as the balancing referred to by Sedley LJ in Douglas, Zeta-Jones v. Hello!  1 FLR 982 where at Paragraphs 136 and 137 he said that the balance is to be struck "…articulated by the principles of legality and proportionality which, as always, constitute the mechanism by which the court reaches its conclusion on counter-railing or qualified rights…tested by, among other things, the standard of what is necessary in a democratic society…the outcome…is determined principally by consideration of proportionality.
Those principles were also applied in Clibbery v. Allan  2 FLR 819 and by Dame Elizabeth Butler-Sloss P in Thompson and Venables v. News Group Newspaper  1 FLR 791 at Paragraphs (40), (42) and (51). In these cases, the court tried to strike a "fair balance" or a "proper balance".
In the Raja Segaran cases cited above, one would have thought the balancing act would have been much simpler if the judge had consciously tried to do so by balancing the need to preserve the dignity of the Chief Justice with the need for the public to judge the conduct of the Chief Justice complained of, and then to test it by the standard of what is necessary in a democratic society. Unfortunately, he seems to have done no balancing act at all in his decision-making.
7. In America, the contempt power has been much more narrowly defined by comparison with the British position. The Supreme Court has applied the Constitution's First Amendment guarantees of freedom of speech and of the press strictly against exercises of the contempt power. In Bridges v. California 314 US 252  the Court held (by 5-4) that utterances can only be punished as contempt where there is a clear and present danger to the orderly and fair administration of justice in relation to pending litigation, saying:
"The substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished (per Black at page 263). A reasonable tendency is not sufficient."
Subsequent cases have shown that the law of contempt is virtually a dead letter in protecting the trial process from prejudicial comment ("sub judice" principles).
8. In P.P v. Ooi Kee Saik  2 MLJ 108 the competing interests were between the right to freedom of speech and sedition. Justice Raja Azlan Shah said a line had to be drawn and in this country the court draws the line. But in attempting to draw the line, the problem is that the drawing board (the Constitution) has various built-in paradoxes. On the one hand, we have Article 10 on freedom of speech. On the other hand, we have Article 149 which allows Parliament to pass laws against subversion, actions prejudicial to public order, etc. Because of this, it is not surprising that we find Justice Raja Azlan Shah justifying a drawing of the line by saying in the Ooi Kee Saik case:
"We must resist the tendency to regard right to freedom of speech as self-subsistent or absolute…A line must therefore be drawn between the right to freedom of speech and sedition….when does free political criticism end and sedition begin? In my view, the right to free speech ceases at the point where it comes within the mischief of Section 3 of the Sedition Act." (At Pages 111-112 of the Law Report)
9. That has been the common thread in all the cases where our courts have had to do the balancing act. For years, our courts have failed us because they have forgotten what should have been the paramount consideration: that this country prides itself on being a democracy. In his paper "Fundamental Rights and The Rule of Law: Their Protection by Judges" for the 12th Commonwealth Law Conference, Raja Aziz Addruse lamented that in considering the scope and extent of fundamental rights, our courts appear to have been content to focus on the restrictions on those rights, as imposed by Parliament, rather than examine the purport and intent of the rights themselves. Through the years, we have become desensitivised to an assault by Parliament on the traditional meaning of democracy. Over the years, various laws have been passed which have taken away the fundamental liberties supposedly granted by our Constitution.
A New Balancing Act Required
10. We should remember the pre-Khawaja days in preventive detention cases in Britain when Liversidge v. Anderson was used to justify the interpretation of the Secretary of State's "reasonable cause to believe" as meaning "if the Secretary of State is satisfied" and that it was not for the court to question the "satisfaction' of the Secretary of State. Everywhere in the Commonwealth including Karam Singh v. Menteri Hal Ehwal  2 MLJ 129 in Malaysia, Liversidge v. Anderson became the rock that sank the ship for many a detainee. Then along came Khawaja v. Home Secretary  AC 74 and suddenly the dissenting judgement of Lord Atkin in Liversidge v. Anderson became the law of the land in the Commonwealth. With due respect, it is time our courts did a Khawaja: adopt a new balancing act so as to be true to democracy. The center of gravity is the Constitution. When considering a conflict between the freedom of speech and contempt of court considerations, our Courts must focus on the Constitution as a starting point and in drawing the line, must look at any given set of circumstances within the larger picture of democracy.
11. In Zainur Zakaria's case, the decision by the Federal Court  3 AMR 3149 will be hailed as a watershed for many years to come. But I submit that the Federal Court judges should have also seized the opportunity to spell out the importance of the freedom of speech (Article 10) read with Article 5 under which no person shall be deprived of his life or personal liberty save in accordance with law. Zainur's client, Dato' Seri Anwar Ibrahim, had filed a notice of motion with a supporting affidavit to pray for an order that two DPP's in the prosecution team, be discharged from further prosecuting the case and that the matter of their conduct be referred to the Attorney-General with a view to such action as may be appropriate being taken against them. In a dialogue highlighted by Justice Abdul Malek Ahmad, FCJ (Page 3187 of report) the trial judge Justice Augustine Paul told Zainur: "This notice of motion has been filed by you and you have to assume full responsibility for it." That was the basis of the contempt case against Zainur. In an extraordinary statement of "justice" the trial judge said (Page 3190):
"This application with its Affidavit-In-Support is an interference with the course of justice as it has no basis. It therefore amounts to a pre-emptive step to undermine the integrity of a trial in progress. The object is to project an impression that the prosecution is anchored on fabricated evidence. This is a serious contempt and I have to act on it with all urgency to preserve the integrity of this trial. As I said in the early stage of this trial I will not hesitate to flex every inch of my judicial muscle to ensure that this trial proceeds smoothly. It is my duty to guarantee that persons who are following this trial are not hoodwinked in any way. With the application of this nature to muddy the smooth flow of justice, I would not be surprised if a similar application is made to have me disqualified from hearing this case. In the light of the baseless application filed by you which is totally unsupported by the documents exhibited by you, I propose to cite you for contempt for having attempted to undermine the integrity of this trial. Before I do so this court will show mercy towards you by dropping all further proceedings if you tender an unconditional apology to this court, to the Attorney-General, to Dato Gani Patail and to Encik Azhar for filing an application which is absolutely baseless and which is an abuse of the process of court."
When invited to address the court, the Attorney-General said (Page 3192 of report):
"My brief answer is that this contempt is contempt in the face of the court….it must be dealt with immediately. This contempt derails justice and requires immediate action."
Zainur was asked to go into the witness box and he said (Page 3193 of report):
"The application was filed upon instructions of my client….I did so in the discharge of my professional duty….Section 42 (Legal Profession Act) requires an advocate and solicitor to uphold justice without fear or favour…."
When found guilty of contempt almost immediately after that, Zainur was asked to address the Court on sentence. He said:
"It was not the intention to commit contempt. When the defence team studied the application before filing it was based on the documents exhibited. Our instructions were based on the documents. In the interest of justice it was felt this matter must be brought to attention of court."
When Zainur refused to apologise, he was sentenced to 3 months' imprisonment
12. The above reads like a passage from Franz Kafka's "The Trial". Fortunately, the Federal Court corrected the scandalous position and set aside the conviction and sentence and in a chilling rebuke, Justice Abdul Malek, FCJ said (Page 3203):
"In the light of all observations made, the conduct of the learned trial Judge himself had vitiated the contempt proceedings. It is obvious that the Court of Appeal, in merely agreeing with the trial judge, fell into the same error."
13. Justice Haidar Mohd Noor, FCJ said (Page 3206 of report) that it was not enough for a lawyer to say he had taken steps on client's instructions. He must also say if his client had the right to take that step. If a client insisted on taking a wrong step, the lawyer must advise him and if the client persists, the lawyer must stop acting for the client. In Justice Haidar's view, the client in this case (Dato Seri Anwar) was prima facie justified in filing his application and hence there could be no question of Zainur being liable for contempt of court for acting on his client's instructions.
14. Various passages from U.K. cases quoted by Justice Abdul Malek are interesting because they refer to the meaning of contempt of court and in some, to the necessary balancing act . Lord Morris of Borth-Y-Gest in Attorney-General v. Times  3 AER 54 said that the decision will depend on whether one aspect of the public interest definitely outweighs another aspect of the public interest. Lord Diplock in the same case enumerated the three requirements of due administration of justice as: (a) unhindered access to courts, (b) reliance on decisions free from bias and based only on facts proved, and (c) no usurpation by any other person of the function of the court to decide according to law. On these three requirements alone, Justine Augustine Paul's decision against Zainur sadly failed, even without touching on the rules of natural justice.
15. It is implicit in Zainur's duty as an advocate and in Dato Seri Anwar's right to file his application that both of them must be able to exercise their freedom of speech. Which is the larger picture that concerned the court in Zainur's case? The administration of justice or the right to freedom of speech under the Constitution? In my humble view, both elements constituted the larger picture. So the balancing act that should be have been clear to Mr. Justice Augustine Paul was between the prosecutors' dignity and the delay to the court caused by the application (as mentioned by him) on one side as opposed to the aforesaid larger picture on the other side. How could he have decided the way he did? Like Mr Justice Kamalanathan Ratnam in Raja Segaran No. 2, Justice Augustine Paul had done no balancing act at all.
16. I would venture to suggest that every judge who threatens any litigant or advocate with contempt of court citation should pause for a while and ask himself or herself whether there is a necessary balancing act to be done and if so, in which way the balance would tilt, and then decide in favour of that side of the balance. In cases of contempt which threaten the citizen's fundamental right to freedom of speech, the effect is as chilling on the freedom of speech as heavy defamation damages.
Rights of the Accused
17. The contempt power gives rise to concern on various points: uncertainty of scope, undue inhibitions on freedom of speech and a summary process lacking in qualities of procedural fairness thought essential for orthodox criminal proceedings. Because of these concerns, many of the proposals of the Phillimore Committee on Contempt of Court (Cmnd.5794, 1974) eventually took form in the Contempt of Court Act 1981 in the U.K.
18. The following summarises matters which could be said to pertain to the rights of the accused in contempt proceedings:
(a) Standard of Proof: Where the contempt alleged may result in the accused/defendant being committed to prison, it must be proved to the same standard as a criminal charge: Re Bramblevale Ltd  Ch.128, Arlidge, Eady & Smith on Contempt (2nd Ed., 1999, Page 130).
(b) No one is bound to incriminate himself: Redfern v. Redfern  P. 139 at 149.
(c) An alleged contemnor is not a compellable witness even in proceedings for civil contempt but if an affidavit is filed the deponent, when threatened with cross-examination, cannot withdraw it: Re Quartz Hill  21 Ch.D. 642. As the proceedings are in the nature of a criminal charge it is within the discretion of the court to refuse to allow the cross examination: Comet Products v. Hawkex Plastics  2 QB 67.
(d) Where it is sought to enforce obedience to a judgement or order, the court will only commit if satisfied that the breach of the judgement or order was wilful. An applicant who seeks to commit a person for breach of an injunction must establish deliberate or wilful breach beyond reasonable doubt. It is therefore a defence to show that the respondent had no knowledge of the order or that the breach was accidental: Fairclough v. Manchester Ship Canal Co.  WN7. Accordingly, personal service of the judgement or order or a copy thereof (Order 45, Rule 7(2) of the Rules of High Court, 1980) and of any supplementary orders (Phonographic Performance v. Tsang  LS Gaz R2331) is always necessary except in the following cases:
i. when an order for substituted service has been obtained;
ii. where the order alleged to have been disobeyed requires a person to abstain from doing an act (i.e. a prohibitory not a mandatory order), it may, pending proper service, be enforced if the person sought to be committed was present when the order was made or has been notified of the order by telephone, telegram or otherwise;
iii. where it is sought to commit a person for breach of an undertaking given to the court by that person;
iv. service on the solicitor of any party against whom an order for discovery or interrogatories is made is sufficient to base an application for the committal of the person disobeying the order;
v. where the court thinks it just to dispense with service.
Mens Rea: It must be shown that the accused intended to do the act in question. At Common Law it was uncertain whether it was necessary to prove in addition an intention to interfere with the course of justice (Attorney-General v. Butterworth  1 QB 696, Borrie & Lowe at Pages 53-54, 274, 275). Such intention must be shown where it is sought to hold an advocate or witness in contempt for failure to attend court: Weston v. Central Criminal Court Courts' Administrator  QB 32, 43 per Denning; In Re Dr. A.S. Rayan  148 JP 569, DC. The contempt of Court Act 1981, U.K. in limiting the scope of strict liability in relation to conduct alleged to interfere with the course of justice in particular proceedings now imports a full Mens Rea requirement for contempt in the face of the Court: See Borrie & Lowe, ibid.
(e) If at the hearing the respondent expresses a wish to give oral evidence on his own behalf, he is entitled to do so.
(f) In contempt proceedings under the Rules of Court (Order 52 of Rules of High Court, 1980 and Order 34 of Subordinate Courts Rules, 1980), there must be strict compliance with the Rules: See Sykt. M. Mohd v. Mahindapal Singh  2 MLJ 112 at Page 113, Paragraph E-F (right-hand column). For example, the alleged contemnor can be discharged if the order for committal proceedings was made in Chambers and not in Open Court: Order 52, Rule 2(2) of High Court Rules and see the case of Chan Sang v. Golden Century  1 MLJ 92; followed in Tan Gin Seng v. Chua Kiam Hong  1 MLJ 29 at 31, Paragraph F-G. Under Order 52 new Rules 1A and 1B (w.e.f. 22nd September 2000) for contempt in the face of the Court, it is not necessary to serve formal notice to show cause but for other cases of contempt, formal notice must be served requiring the alleged contemnor to show cause.
(g) The order committing the contemnor must specify the contempt (Chiltern D.C. v. Keane  2 AER 118) and make clear to whom the order is directed and what must be done to comply with it: Re C (A Minor) (Contempt)  1 FLR 578. The particulars of the contempt in the order must not refer to matters not included in the affidavits in support of the application for committal: Tabone v. Seguna  1 FLR 591. If the order does not provide for imprisonment for a fixed term it will be unlawful: Linnett v. Coles  QB 555. If service of the order is dispensed with, this should be recorded in the order: Nguyen v. Phung  FLR 773.
(h) Rules of natural justice must be observed in summary contempt proceedings. The defendant must be given the chance to defend himself and in appropriate cases, should be given the opportunity of being legally represented. In R v. K  78 Cr App Rep 82, K refused to testify against a fellow inmate of Camp Hill Prison at the latter's trial on a charge of wounding K: the judge did not offer him legal representation, brusquely prevented him from giving any explanation for his refusal and sentenced him to a further three months' imprisonment. The Court of Appeal quashed the conviction. In fact, K could have presented evidence of duress which might have constituted a valid defence. See also In Re Dr. A.S. Rayan  148 JP 569 and R. v. Chowdhury  Times 29 March.
Habeas Corpus In Aid of Contemnor Committed to Prison: A Suggestion
19. In those cases where an alleged contemnor has been committed to prison in circumstances which show his fundamental liberties have been breached, it is possible to resort to habeas corpus to secure his freedom. The source of this interesting argument can be found firstly in Paragraph 1, Schedule of the Courts of Judicature Act 1964 on "Additional Powers of High Court" which gives the Court:
"Power to issue to any person or authority directions, orders or writs, including writs of the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any others, for the enforcement of the rights conferred by Part II of the Constitution, or any of them, or for any purpose."
20. The writ of Habeas Corpus occupies a special place in English constitutional law as the most efficient protection for the liberty of the subject. The use of this great remedy rooted in early English medieval legal history has great potential for the protection of citizens against erosion of their right to be free from unlawful restraints on their personal liberty . If for example, a court sentenced an alleged contemnor for contempt in the face of the court and against the rules of natural justice in, say, the circumstances described in R. v. K in Paragraph 11(h) above, it is arguable that the prisoner could resort to habeas corpus because his detention is unlawful.
21. Traditionally the writ of habeas corpus has been used to secure the release of a person from illegal detention. In Canada, a series of cases have shown that the current view is that the restraints on individual liberty which are remedied by habeas corpus are no longer confined solely to cases of illegal detention. It is now available to challenge even threatened deprivation of liberty: Idziak v. Canada (Minister of Justice)  77 C.C.C. (3d) 65 (S.C.C.): where the applicant was subject to an outstanding warrant of detention. In Ooi Ah Phua v. Officer-in-Charge Criminal Investigation  2 MLJ 198, the Federal Court rejected habeas corpus as an appropriate remedy for one denied access to his lawyer. In the light of the reasoning in the Canadian cases, it is submitted that the Federal Court was wrong. Being denied access to his lawyer is a denial of a fundamental right under Article 5.
22. The authors of "The Criminal Lawyers' Guide to Extraordinary Remedies" state that a significant issue which arises from R. v. Gamble is the extent to which inmates convicted under Criminal Code provisions which are subsequently declared unconstitutional may challenge the legality of their continued detention by way of habeas corpus . According to the said authors, by expanding the scope of the writ, R. v. Gamble appears to create an exception to this rule where the application is based on an infringement of the applicant's rights under the Canadian Charter of Rights & Freedom .
23. If a person was wrongly detained for contempt of court which was alleged to arise in circumstances showing there was an Order of Court and his freedom of speech was somehow denied (Raja Segaran situation), could he not challenge his detention by a writ of habeas corpus? I humbly submit that he could, even without exhausting his right to appeal. As the authors of "The Criminal Lawyers' Guide to Extraordinary Remedies" point out, in contrast with certiorari, mandamus and prohibition, the writ of habeas corpus is not a discretionary remedy and as a general rule, the availability of an alternative remedy is not sufficient reason for a court to refuse to issue the writ, although it makes the remedy less appropriate. If however institutional delays are so serious as to render the alternative remedy inadequate, the habeas corpus remedy would be more readily granted: Fraser v. Kent Institution  130 C.C.C. (3d) 393 (B.C.C.A.).
24. The purposive approach in R. v. Gamble was a clear departure from the restrictive common law rules governing the availability of the writ of habeas corpus. Justice Wilson said that where habeas corpus is sought as a Charter remedy, the courts should not be bound to limited categories or definitions of jurisdictional review when the liberty of the subject is at stake. She reminded that the remedy has traditionally been used for the protection of the citizen's fundamental right to liberty and that the Superior Courts in Canada have in accordance with the sentiments expressed in the habeas corpus trilogy of Miller, Cardinal and Morin displayed both creativity and flexibility in adapting the traditional remedy of habeas corpus as a Charter remedy. As stated in R. v. Domm  31 O.R. (3d) 540 at Page 553 (C.A.), the attempt to "modify traditional common law remedies such as habeas corpus to ensure relief against constitutional violations" is part of a larger theme in Charter jurisprudence to provide "an effective remedy to right a constitutional wrong" .
25. One cannot speculate or foresee all the situations in which the detention of an alleged contemnor has involved a denial of his fundamental or civil liberties. We can speculate for example in the Raja Segaran cases what could happen if for example the Bar Council and members of the Bar went ahead to hold the EGMs despite the Injunctions issued by Mr Justice Kamalanathan Ratnam. They would probably be committed to prison for contempt of court. They could plead that their fundamental right to freedom of speech under Article 10 of the Constitution has been denied unjustly. Their lawyers could file for Writs of Habeas Corpus. "Clear and Present Danger: The Bar Behind Bars". Any takers for the movie rights to such a splendid scenario? Does anyone dare to say it is a hopeless case to argue?
(Extract from Special Issue on "Justice in Jeopardy: Malaysia 2000")
by the International Bar Association
The use and threatened use of the contempt power in certain cases in Malaysia has given concern as to the true independence of the judiciary. It also gives concern as to the ability of lawyers to render their services freely.
Attorney General, Malaysia v Manjeet Singh Dhillon  1 M.L.J 167
It may reasonably be said that this was the first case of the chain which has led to the present situation. The Supreme Court, by a 2-1 majority, found the defendant, a lawyer, guilty of contempt of court. The case arose out of the crisis of 1988, at the time when the then Lord President had been suspended. There was an Acting Lord President in place who, by the time of the case, had been appointed Lord President. The defendant affirmed an affidavit on behalf of the Bar Council in his capacity as secretary. The affidavit was filed in support of an application for leave for an order of committal to prison of the Acting Lord President. It was alleged that he was guilty of contempt of the Supreme Court by attempting to prevent, frustrate and interfere with a sitting of the Court, thus abusing his official position. The defendant, who admitted that he had affirmed the affidavit in his representative capacity, was found guilty of contempt of court. Although it was noted that similar criticisms of the Acting Lord President were made by the Malaysian Bar, no proceedings were initiated against the Bar. The fact that the defendant's responsibility was vicarious was no defence to the charge, but was regarded as a mitigating factor. For these reasons a fine of $5,000 (in default of three months' imprisonment) was thought appropriate as a sentence. Irrespective of the merits of this decision, the judgement conveyed the hint that the real culprit was not the defendant himself but the Malaysian Bar Council. The warning having been given, judicial sentiment and apprehensions were satisfied in the circumstances by a fine. But, as messages go, the message was clear. The term "contempt of court" acquired a new significance for lawyers in relation to their work.
Further cases followed. Three of the more recent ones were brought to the attention of the mission.
Mbf Capital Bhd & Anor v. Tommy Thomas & Anor  1 M.L.J. 139
In November 1995, David Samuels wrote an article entitled "Malaysian Justice on Trial" in a legal journal called "The International Commercial Litigation". The article examined recent cases and legal incidents in Malaysia and quoted from various lawyers, including Mr Tommy Thomas, then Secretary of the Bar Council, and a partner of Skrine & Co, a firm of advocates and solicitors. Profiled for special discussion in this article were (i) Ayer Molek case (Insas Bhd & Anor v. Ayer Molek Rubber Co Bhd & Ors) which concerned an ultimately successful court action to bring to force a rectification of Ayer Molek's share register; and (ii) the case of Malaysia Borneo Finance Holdings (MBfH) v. East Asiatic Company (EAC) which concerned multiple actions simultaneously brought before the Civil and Commercial Divisions of the High Court and two different judges of the Commercial Division. The comments quoted in the article by Mr Tommy Thomas, among others, had been critical of certain aspects of each of these cases. The publication of these remarks in the article gave rise to a number of separate actions for defamation including against Mr Thomas and Skrine & Co. The total sum claimed was over RM 200 million, which by Malaysian standards, was a huge sum. The action, however, gave rise to further controversies of more direct concern at this point.
Before the action could proceed to trial, the insurers of the defendants brokered a settlement whereby the latter agreed to retract their statements, offer unconditional apologies and settle payment of a substantial undisclosed sum to the plaintiffs. On 21 October 1998, judgement was handed down in terms of a settlement with the judge further chastising the defendants for making false statements. Mr Thomas, however, felt strongly that he had been pressured into the settlement by his insurers and he made a statement to the press in which he said that the settlement "was initiated, brokered and insisted upon entirely by the insurers. The actions were settled despite my express objections". This statement was published on 22 October 1998 in the same newspaper report that reported on the settlement. No sooner had it been published than Mr Thomas realized his mistake and retracted his statement. The retraction was published on 24 October 1998. The court, however, issued Mr Thomas with a notice to show cause why he should not be cited for contempt. At the hearing which followed, Mr Thomas did not oppose the notice but sought only to mitigate sentence. He filed an affidavit tendering an unconditional apology to the court and an explanation that his remarks were not intended in any way to embarrass or offend the court, but were directed towards the insurers and the way in which the settlement of the various defamation actions had been reached. Despite a plea by his counsel that, given the immediate apology, a custodial sentence should not be imposed Mr Thomas was sentenced to six months' imprisonment.
In his judgement Mr Justice Kamalanathan Ratnam rejected in unequivocal terms the apology and explanation which Mr Thomas had given. Despite the fact that remorse and contrition had been expressed, the judge found that Mr Thomas
"has not been honest with the court. He has, in my view, not come clean. His explanation that the press statement which said that 'the actions were settled despite my express objections' was meant for the insurers, rang so hollow that it was almost an insult to the intelligence of the court to expect this court to be so gullible as to accept that explanation."
He continued that it was
"patently clear that by making an immediate statement in the pressthat the settlement was effected despite his express objections, Mr Tommy Thomas intended to portray to the world at large that he was never a willing party to the settlement.… (He) was a besotted adversary who would not sheath his sword until he had had the last say….Even to the very end, he is not prepared to come clean, bare his soul and then seek the court's compassion."
This decision was appealed. The IBA observed the proceedings. The final verdict is awaited.
This report has explored this case because it raises a number of different issues. In addition to the issue of contempt, during the hearing there had been a long and protracted discussion about whether the Bar Council could have a watching brief in light of its general duties under the section 42 of the Legal Profession Act 1976. The judge took the view that the Bar Council did not have sufficient interest, and a watching brief might cause a conflict of interests if the Bar Council was called upon to take disciplinary proceedings against Mr Thomas. It is unfortunate that the judge denied the Bar Council intervention in this case. Although the watching brief procedure is not comment to all legal systems, it is a useful tool in controversial and difficult cases.
The arguments regarding the mitigation of sentence were also significant in this case. Although Mr Thomas offered what could be considered a full apology, the judge did not accept it. He expressed his view forthrightly in the words quoted above. Furthermore, Mr Thomas had not sought mercy from the Attorney-General. This was considered to be a factor in light of the case of Anthony Ratos s/o Domingos Ratos v. City Specialist Centre Sdn Bhd (a City Medical Centre) (Attorney-General, Intervene)  3 M.L.J. 349. This highlights the active role played by the Attorney-General's office in such cases.
Skrine & Co's plea for recusal
This was another matter which developed from the defamation case referred to above. In December 1997, at an earlier hearing in the case the judge, Mr Justice Kamalanathan Ratnam, had declined to frame a preliminary issue upon the liability of the partners of the firm of Skrine & Co because it was his "finding that the alleged defamatory words spoken and published by the first defendant Mr Tommy Thomas, one of the partners of Skrine & Co, are both intrinsically and inextricably linked and knotted with the second defendants' (Skrine & Co) ordinary course of business, so much so that the first and second defendant are to my mind joint and several defendants to this action". Mr Chin Yoong Chong, a partner in Skrine, filed an application for an order that the judge "be disqualified from presiding over all further proceedings in this action including the trial of this action" because he had
"made what is in effect a pre-judgement of the most pivotal issue affecting the second defendant at a stage when he was not called upon to decide the issue….(and) there would be a reasonable suspicion of, or alternatively a real likelihood that a fair trial of this action before the Honourable Mr Justice Kamalanathan Ratnam will no longer be possible and that therefore there is an appearance of, though not actual, bias, however much the Honourable Judge may judiciously strive to avoid it."
It was averred that the judge's "finding" undermined the substantive defence of the partners of Skrine & Co. under sections 7 and 12 of the Partnership Act 1961. Broadly, the affidavit of the answering defendants in reply to the application disputed the interpretation given to the "finding" made by the judge and alleged that "there has been inexorable and inordinate delay in making this application and it was not made in good faith".
On 30 March 1998, the judge accepted that the delay in making the application for his recusal was inordinately long, especially as he had conducted two case managements since the order of 15 December 1997 had been passed. He dismissed the application with costs, adding that he had left the defences available to the applicants under section 7 and 12 of Partnership Act intact, obviating any suggestion of bias. He took the view that the delay, the fact that senior counsel's advice was taken and that the applicant had toyed with whether the application should be filed showed that it lacked bona fides. The judge said that he felt baffled that "senior and leading counsel who were….adroit in the art of pleading" had simultaneously alleged bias and expressed confidence in the court. Lawyers who spoke to the mission felt that the issue was not a personal one, but simply whether a judge who had, perhaps pre-judged a critical issue should continue with the case. The contrary argument was that refusal to frame a preliminary issue was not a pre-judgement but a deferment until the trial of the issues. In any event, those acting for Skrine & Co decided to appeal.
The judges of the Court of Appeal took the view that if application was not immediately withdrawn, notices for contempt would follow because the application was misconceived and intemperate. The lawyers appearing before the Court of Appeal said that they felt a sense of panic at this. They met over lunch and the decision was made to withdraw the appeal. In the course of discussions, the mission was invited to examine the memorandum of appeal in this case. It did so and its view was that, with respect to the Court of Appeal, whatever may be said as to whether the application was misconceived, it was at a loss to see how it could be said to have been couched in intemperate language. On the contrary, it seemed to the mission that it was couched in entirely appropriate language.
Whether the application was misconceived is not the issue in the present context. However, the threatened use of the contempt power has to be taken seriously. So seriously, in fact, that instructions had to be sought and taken over lunch from Mr Chin with the result that a decision was taken not to proceed with the action because of the threat which had been made. The appeal was therefore withdrawn. We are in no doubt that as a result of this case lawyers may have just cause to be apprehensive that the contempt power may be used if they make an application, even in appropriate language, for a judge to recuse himself. That amounts, in our view, to real causes for concern that in such cases lawyers may not be able to render their services freely.
The Zainur Zakaria case
Mr Zakaria was one of the lawyers defending the former Deputy Prime Minister Datuk Seri Anwar Ibrahim, whose case will be considered later. Mr Anwar's trial had started on 2 November 1998. On 29 November, an application was made to the court on behalf of Mr Anwar by Mr Zakaria to have two of the prosecutors excluded from the case on the ground that they had attempted to fabricate evidence against him. In support of the allegation, Mr Anwar had lodged an affidavit alleging that they had tried to persuade a colleague of his to fabricate evidence against him. The affidavit itself was based on a letter written by the colleague's lawyer in which he protested that his client was being prevailed upon by the prosecutors to give information about Mr Anwar in exchange for dropping a capital charge against him (the colleague) in favour of a charge carrying a lesser sentence. Declining to consider this application on its merits, the trial judge not only ruled that the application was misconceived but that it was also an abuse of process of the kind that interfered with the due administration of justice. It amounted to a preemptive step to undermine the integrity of a trial in progress and amounted to a serious contempt of court. The judge decided that he had to act with all urgency. After announcing that he proposed to cite Mr Zakaria for contempt, he added that Mr Zakaria could put an end to the proceedings by giving an unconditional apology to the court, the Attorney-General and the two prosecutors. He refused to adjourn the matter for preparation of any defence for more than half an hour. Moreover, the judge refused to allow the lawyer who had written the letter to be called as a witness and he refused to allow the President of the Bar Council a watching brief.
During the half-hour recess, Mr Zakaria consulted other members of Mr Anwar's defence team. He came to the conclusion that to apologise to the court and admit that the application was without foundation would be contrary to the interests of his client.
On the following day, the judge sentenced Mr Zakaria to three months' imprisonment for contempt. He ordered that the sentence run from 4.00 pm on that day. An application made by Raja Aziz Addruse, who was the leader of Mr Anwar's defence team, for a stay of execution of sentence pending appeal was refused. So was an application for a stay of execution until the next day to enable Mr Zakaria to sort out his personal affairs. Raja Aziz Addruse and his colleagues immediately went to see the President of the Court of Appeal and there obtained a temporary stay of execution until a formal application for a stay pending appeal could be made. On 4 December, Mr Zakaria appeared in the dock before three judges of the Court of Appeal to appeal against the refusal by the trial judge to grant a stay of execution of sentence pending appeal. After hearing submissions, this appeal was allowed subject to bail being posted by Mr Zakaria at RM10,000 in one surety.