CORE Metadata, citation and similar papers at core.ac.uk Provided by Durham e-Theses Durham E-Theses THE CONTEMPT POWER: A SWORD OR A SHIELD? A STUDY OF THE LAW AND PRACTICE OF CONTEMPT OF COURT IN MALAYSIA. MOHD-SHERIFF, SHUKRIAH How to cite: MOHD-SHERIFF, SHUKRIAH (2010) THE CONTEMPT POWER: A SWORD OR A SHIELD? A STUDY OF THE LAW AND PRACTICE OF CONTEMPT OF COURT IN MALAYSIA., Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/536/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 THE CONTEMPT POWER: A SWORD OR A SHIELD? – A STUDY OF THE LAW AND PRACTICE OF CONTEMPT OF COURT IN MALAYSIA. SHUKRIAH MOHD SHERIFF A DOCTORAL THESIS SUBMITTED TO DURHAM UNIVERSITY IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE AWARD OF THE DEGREE OF DOCTOR OF PHILOSOPHY (LAW) 2010 Dedication To my dearest parents: The Late Dato’ Hj. Mohd Sheriff Puteh & Hajjah Wan Sepiah Wan Ibrahim For giving all the love, support and encouragement throughout the duration of my studies To my beloved husband: Muhammad Syahmi Mohd Karim For your love, sacrifices, support and tolerance given whilst you were also struggling with your Ph.D To my dearest daughters: Hanan Afiqah Muhammad Syahmi Hanan Insyirah Muhammad Syahmi For all the love and understanding given whilst I was completing my thesis. Indeed, they have made my life meaningful during my academic journey in Durham. i ACKNOWLEDGEMENT Alhamdulillah, all praise to Allah, the most gracious and the most merciful for the guidance and blessing in realising my goal to achieve this success in my studies. The process of accomplishing this thesis has gone through numerous challenges in which many parties have been involved directly or indirectly in giving assistance, support and encouragement. I wish to express my utmost gratitude to all of them for their willingness to assist me in the process of completing this thesis. In researching this rather complicated area of law, I had the exceptional privilege of having Professor Michael Bohlander as my main supervisor. His wide interest and experience have been particularly helpful in tackling the problems I encountered during the course of this thesis writing. The encouragement he generously gave me at every stage of this work made the whole task extremely interesting. I am indebted to him for his source of motivation and continuous support. The amount of knowledge and experience that I gained is invaluable. Professor Ian Leigh as my second supervisor also deserves similar appreciation and gratitude for his help, guidance and encouragement. I am also indebted to him. I am also thankful to the staff of Durham Law School for their help. It is also my pleasure to dedicate my special thanks and appreciation to my sponsors – International Islamic University Malaysia and the Government of Malaysia for giving all the financial support throughout the duration of my studies. Most of all, my special gratitude to all my family members especially to my husband; Muhammad Syahmi, my daughters; Hanan Afiqah and Hanan Insyirah, my mother; Hajjah Wan Sepiah; my mother in law; Hajjah Pon and my sisters; Faizah and Mashitah. They have supported me with their endless love, moral support, prayers and encouragement. This work is especially dedicated to my late father; Dato’ Hj. Mohd Sheriff Puteh who passed away while I was in the midst of completing my thesis. My father had always been my source of strength and had never failed to inspire me in my academic pursuits. Last but not least, thanks to all my friends who in their different ways have all encouraged me to complete my studies. May Allah always give His blessings to them in this world and the hereafter. Ameen. ii DECLARATION I hereby declare that no portion of the work that appears in this study has been used in support of an application of another degree in qualification to this or any other university or institutions of learning Copyright The copyright of this thesis rests with the author. No extract from it should be published without her prior written consent, and all information derived from it should be acknowledged iii 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. iv DEDICATION i ACKNOWLEDGEMENT ii DECLARATION iii ABSTRACT iv TABLE OF CONTENTS v LIST OF CASES viii LIST OF TABLES xvi LIST OF DIAGRAM xvii ABBREVIATIONS xviii Chapter 1: Introduction 1.1 Background Research and Statements of the Problem 1 1.2 Objectives of the Study 3 1.3 Research Question 4 1.4 Research Methodology 4 1.5 Literature Review 5 1.6 Outline of Chapters 8 Chapter 2: The Malaysian Legal System 2.1 THE ORIGINS AND DEVELOPMENTS OF THE EXISTING 12 MALAYSIAN LEGAL SYSTEM 2.1.1 The Legal System in the Post-Independence Period 14 2.2 THE JUDICIARY AND THE PRESENT MALAYSIAN LEGAL 16 SYSTEM 2.2.1 The Judiciary and the Sources of Law 18 2.2.2 The Courts and the Legal Actors 24 2.2.2.1 The Structure and the Jurisdiction of the Courts 24 2.2.2.2 The Legal Actors 31 2.3 FREEDOM OF SPEECH AND CONTEMPT OF COURT: AN INTRODUCTION TO FUNDAMENTAL LIBERTIES AND 40 HUMAN RIGHTS IN MALAYSIA 2.3.1 Malaysia and Human Rights 43 Chapter 3: Contempt of Court in Malaysia 3.1 THE MALAYSIAN LAW OF CONTEMPT OF COURT 50 3.1.1 Jurisdiction 50 3.1.2 Definition of Contempt 52 3.1.2.1 Civil Contempt versus Criminal Contempt 54 3.1.2.2 Classification of Contempt 57 3.1.3 Mens Rea or Intent 82 3.1.4 Mode of Trial or Procedures 84 3.1.4.1 Procedures in the Superior Courts 85 3.1.4.2 Procedures in the Subordinate Courts 89 3.1.5 Sanctions and Remedies 91 v 3.2 MAIN AREAS OF CONCERN IN THE LAW AND PRACTICE OF 93 CONTEMPT OF COURT IN MALAYSIA 3.2.1 What is Contempt and Its Classification: Actus Reus and its Test 93 of Liability 3.2.2 Mens Rea and Defences 97 3.2.3 Mode of Trial or Procedures 100 3.2.4 Sanctions and Remedies 103 3.2.5 Judges and Judicial Approach 104 3.2.5.1 Inconsistencies