Article 10 of the Federal Constitution guarantees the freedom of speech, albeit with a caveat: Parliament may impose restrictions, including those related to contempt of court.
In contrast, Article 126—unlike its Indian counterpart—limits the courts’ contempt powers to contempt of itself.
This suggests that the framers of our Constitution intentionally excluded the judiciary’s power to punish individuals for scandalising the court.
Therefore, in my view, the attorney-general (AG) cannot constitutionally pursue charges for scandalising the court in the absence of a Contempt of Court Act enacted by parliament.
The judiciary, for its part, as the guardian of justice, must exercise its powers with discernment and restraint. However, recent trends indicate a rise in contempt proceedings, often appearing to suppress criticism rather than uphold the integrity of judicial processes.
Former law minister Zaid Ibrahim’s call for the codification of contempt laws is both timely and necessary, underscoring the urgent need for reform in a democratic society.
The expanding use of contempt
Traditionally, contempt of court served a clear and necessary function: maintaining courtroom order, ensuring compliance with judicial decisions, and safeguarding the integrity of judicial proceedings.
Actions such as disruptions during trials, defiance of court orders, or clear acts of obstruction warranted immediate sanction. However, the continued application of contempt charges for subjective offences—such as “scandalising the court” or “bringing the judiciary into disrepute”—raises fundamental constitutional concerns.
Such offences, once a rarity, have become an all-too-common tool for shielding the judiciary from critique. In a legal system that upholds the rule of law, this trend is not only outdated but incompatible with democratic ideals.
Ultimately, the argument that judges must be protected from external scrutiny—especially when their decisions shape public policy and governance—undermines transparency and accountability.
Contempt versus judicial immunity
At the core of this issue lies the balance between judicial immunity and constitutional accountability.
The basic structure doctrine, championed by many legal scholars, affirms the judiciary’s role in interpreting constitutional boundaries. Yet, the claim that the courts possess unchecked immunity—bolstered by political endorsements—creates an imbalance that threatens democratic principles.
On the other hand, the oath of office jurisprudence advocates constitutional supremacy over judicial hegemony. If properly applied, it could serve as a counterweight to judicial immunity arguments, reinforcing the constitutional mandate that no institution should operate beyond reproach.
Efforts to suppress debates surrounding basic structure doctrine or oath of office jurisprudence are futile. These discussions are indispensable to the evolution of legal thought and governance, ensuring that constitutional interpretations reflect contemporary societal needs rather than entrenched judicial perspectives.
The dangers of criminalising criticism
History has demonstrated that attempts to silence judicial scrutiny through contempt proceedings are not only unconstitutional but damaging to the judiciary’s credibility. The fundamental right to free speech, guaranteed under Article 10 of the Federal Constitution, explicitly restricts judicial powers from encroaching upon public discourse.
In its Dr Streram and Aluma Mark Chinonso decisions, the Court of Appeal highlighted the dangers of courts wielding contempt charges as a means to stifle dissent.
The judiciary’s authority should not be misused to cage media professionals, lawyers or critics under arbitrary contempt rulings. Without a codified Contempt of Court Act—which would provide statutory defences for an accused—such judicial actions risk violating constitutional principles.
Instead, judicial power should be exercised with restraint, ensuring that criticism serves as a means for institutional improvement rather than perceived defamation.
The role of the AG and politicians
The Attorney-General (AG) holds a pivotal role in this discourse. Without legislative backing, contempt petitions by the AG against individuals or organisations for merely critiquing the judiciary drag the courts into unnecessary controversy.
If contempt legislation is on the AG’s agenda, it should be placed before Parliament promptly, rather than serving as a political tool to deter dissent.
Lord Denning, a leading contributor to legal philosophy, once affirmed the need for unfettered public discourse:
“It is the right of every man, in parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Exposed as (the judiciary) are to the winds of criticism, nothing which is said by this person or that will deter us from doing what we believe is right.”
The Malaysian legal system once echoed this ethos. Prior to the removal of lord president Salleh Abas, the AG’s Chambers and judiciary maintained a disciplined approach to free speech, ensuring that legal professionals and the public exercised their constitutional rights without fear.
However, following his dismissal, contempt charges became a common threat, used against lawyers and critics alike.
Lawyers as constitutional pillars
The legal profession plays a fundamental role in sustaining the rule of law.
Lawyers, as officers of the court, are constitutionally mandated to defend their clients without fear or favour. Any obstruction—whether direct or indirect—detracts from the profession’s duty and undermines justice itself.
Efforts to push for legislation that would address the issue of what constitutes contempt of court have been going on for decades. The Bar Council has repeatedly called for its enactment, yet political inertia has prevented meaningful progress.
In the absence of such legislation, courts remain vulnerable to external influence, perpetuating judicial vagaries that harm the legal ecosystem.
Arun Kasi’s case
Recent cases, such as those involving lawyer Arun Kasi, a maritime lawyer of some repute, illustrate the dangers of contempt proceedings being wielded as a punitive measure.
In 2019, the Federal Court ruled his criticisms of a court decision, published in two articles, was tantamount to contempt as they had scandalised the judiciary.
A lawyer committed to social justice, Arun faced significant adversity. To me, his conduct was akin to Socrates’s philosophical defiance, standing up to his constitutional right to free speech under Article 10.
The legal profession should not have to endure intimidation for exercising fundamental freedoms. Contempt charges against critics contradict the government’s promises of transparency and accountability post-2018.
Not to be deterred, Arun pursued further legal qualifications and was called to the English Bar, allowing him to continue his advocacy despite institutional challenges. His ordeal underscores the urgent need for Malaysia to reassess its stance on contempt proceedings.
The way forward
As Malaysia prepares for a transition to a new chief justice (CJ), the incoming CJ has an opportunity to reshape the judiciary’s relationship with public discourse.
Lady Hale, a former President of the UK Supreme Court, captured this principle eloquently:
“We have free press, and if the press wants to attack us, that’s fine. But we have to continue to do the job according to our judicial oaths. We certainly do not pay any attention to attacks of that nature.”
Malaysia must adopt a similar stance. The archaic use of contempt for scandalising the court must be abolished, aligning judicial practice with democratic principles.
Lawyers, media professionals, and academics should not be deterred from engaging in meaningful critique.
With the proper legislative safeguards in place, Malaysia can ensure that judicial power is exercised responsibly—without compromising the freedoms essential to democratic governance.
The views expressed are those of the writer and do not necessarily reflect those of FMT.