Contempt of court is an offence of a criminal character, power to order committal for the offence must be exercised with great care — Hafiz Hassan

JULY 10 — The High Court at Seremban has allowed contempt proceedings to move forward against Negeri Sembilan’s three territorial chieftains (Undang) and a former Undang, as well as two other officials – Tengku Besar Tampin and  Datuk Shahbandar Sungei Ujong – for allegedly defying a court injunction.

Judge Roz Mawar Rozain granted leave to the Dewan Keadilan dan Undang (DKU) and its secretary, Raja Norazli Raja Nordin, to initiate the committal proceedings.

When leave is granted, that means a prima facie case has been established by the DKU and Raja Norazli against the alleged contemnors.

It is a civil contempt of court to, among others, disobey an order of the court requiring a person to abstain from doing a specified act.

Where the alleged contempt involves misconduct (disobeying a court order), civil contempt bears a two-fold character. First, as between the parties to the proceedings it implies a right to exercise and a liability to submit to a form of civil execution. Second, as between the party in default and the state it implies a penal or disciplinary jurisdiction to be exercised by the court in the public interest.

The public interest is the upholding of the administration of justice, ensuring court orders are obeyed, judicial authority is respected, and the public’s confidence in the legal system remains intact.

At the hearing of the committal proceedings following the grant of leave, except with the leave of the court, no grounds may be relied on except those set out in the statement in support of the application for contempt of court.

Evidence at the hearing is by way of affidavit (sworn statement), but if the alleged contemnor wishes to give oral evidence on his own behalf he is entitled to do so. The alleged contemnor is not a compellable witness in the proceedings, but he may be ordered to file and serve before the hearing any affidavit or statement of a witness of fact on which he might wish to rely.

If, however, the alleged contemnor chooses to give evidence voluntarily, he cannot, as of right, refuse to be cross-examined. The court has a discretion whether to allow cross-examination on the affidavit.

The burden of proof is on the party seeking to establish that a contempt has been committed. Contempt of court must be proved beyond reasonable doubt. As Chief Justice Arifin Zakaria (as he then was) said in the Federal Court case of Tan Sri Dato’ (Dr) Rozali Ismail & Ors v Lim Pang Cheong @ George Lim & Ors [2012] said:

“One thing is clear, be it civil or criminal contempt, the standard of proof required in either type is the same, which is beyond reasonable doubt.”

The power to order committal for civil contempt is a power to be exercised with great care. The court will only punish disobedience to an order of the court if satisfied that the terms of the order are clear and unambiguous, that the alleged contemnor has proper notice of the terms and that a breach of the order has been proved beyond reasonable doubt. (See Halsbury Laws of England, 4th ed, at p 36)

In the words of the great English judge, Lord Denning: “A contempt of court is an offence of a criminal character. Any man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond reasonable doubt.” (See Re Bramblevale Ltd [1970])

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.