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1) Malaysian courts have the power to punish advocates and solicitors for contempt of court committed outside the presence of a judge. This includes the High Court, Court of Appeal, Federal Court, Magistrates' and Sessions Court. 2) An example given is of a senior lawyer, Arun Kasi, who was imprisoned and fined for scandalizing the Federal Court through publications making allegations about a case. 3) Contempt outside of court includes scandalizing judges, influencing witnesses, commenting on pending cases, deceiving the court, and interfering with judges. Advocates can also face disciplinary action through the Legal Profession Act.

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117 views2 pages

PP Script

1) Malaysian courts have the power to punish advocates and solicitors for contempt of court committed outside the presence of a judge. This includes the High Court, Court of Appeal, Federal Court, Magistrates' and Sessions Court. 2) An example given is of a senior lawyer, Arun Kasi, who was imprisoned and fined for scandalizing the Federal Court through publications making allegations about a case. 3) Contempt outside of court includes scandalizing judges, influencing witnesses, commenting on pending cases, deceiving the court, and interfering with judges. Advocates can also face disciplinary action through the Legal Profession Act.

Uploaded by

EngHui Eu
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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Punishment for an advocate and solicitor who commit contempt of court outside

the immediate presence of judge


In Malaysia, courts have the power to punish for contempt of itself. This
power may be specifically granted by statute, or from the inherent power of the courts.
I am referring to Paragraph 26 in the Third Schedule in the Subordinate Courts
Act 1948 which states that the Magistrates’ and Sessions Court have the power to
punish for contempt of court to such an extent and in such a manner as may be
prescribed by the rules of court. Besides, Section 13 of the Courts of Judicature Act
1964 and Article 126 of the Federal Constitution empower the High Court, Court of
Appeal and Federal Court to punish any contempt of itself. The courts have the power
to impose sanctions for contempt of court committed by an advocate and solicitor
outside the immediate presence of the judge. Sanctions include, fines, imprisonment,
cautions and discharge; paying the costs of the application; and striking off a lawyer’s
name from the rolls.
I am referring to PCP Construction Sdn Bhd v. Leap Modulation Sdn Bhd;
Asian Internatioanl Arbitration Centre (Intervener) [2019] 6 CLJ 1, the AG for
an order of committal against Arun Kasi, a senior member of the Bar Council for
contempt of court, more particularly, scandalising contempt. The grounds upon which
this application was made was that Arun Kasi had scandalised the Federal Court of
Malaysia by making various allegations regarding (1) judicial conduct in the hearing,
(2) disposal and (3) adjudication of a civil application before the Federal Court in 2
articles published online. The thrust of the Attorney General's originating summons is
that Arun Kasi's statements in these two articles insinuate that the Federal Court
Judges who heard and allowed the application to expunge portions of the dissenting
judgment were guilty of misconduct, involved in corrupt activity and had
compromised their integrity. As a consequence of these allegations, the Attorney
General brought this application to protect public confidence in the administration of
justice in Malaysia. The court held that Arun Kasi’s contemptuous statements against
the Federal Court are very serious and tarnish the good name of the Judiciary as a
whole. He has undermined the public confidence in the Judiciary, ridiculed,
scandalised and offended the dignity, integrity and impartiality of the court. The court
held that the appropriate sentence was a term of imprisonment of 30 days and a fine of
RM40,000 in default, a further 30 days.
Apart from scandalizing the judge by way of publication, other acts for
example publications tending to deter or influence witness which likely to prejudice
fair trial or conduct of proceedings, comment on pending legal proceedings which
purports to prejudge the issues which are to be tried by the court, abuse of process of
the court by deceiving the court or the court’s officers by deliberately suppressing a
fact or giving false facts, and interference with a judge, by private communication or
otherwise, for the purpose of influencing his decision in a case will also amount to
contempt of court outside the immediate presence of the judge.
Apart from the power of the courts punish the advocates and solicitors for
contempt of itself, an advocate and solicitor who committed contempt of court outside
the presence of judge may also subjected to disciplinary actions by virtue of Section
94(1) of Legal Profession Act 1976. I am referring to S.94(3)(d) of the LPA 1976,
“misconduct” refers to conduct or omission to act in Malaysia or elsewhere by an
advocate and solicitor in professional capacity or otherwise which amounts to grave
impropriety and it includes- breach of any rule of practice and etiquette of the
profession made by the Bar Council under Legal Professions Act 1976 or otherwise. It
is clear that any contempt of court committed outside the immediate presence of the
judge falls under the meaning of “misconduct”.
I also refer to rule 15 of Legal Profession (Practice and Etiquette) Rules
1978, where it provides that an advocate and solicitor shall maintain a respectful
attitude towards the court. Therefore, it is clear that Contempt of court outside the
immediate presence of the judge committed by way of scandalizing the judge, sub
judice comment or abuse of the process of court is disrespectful towards the court is
considered as a “misconduct”.
As to the punishment, I refer to Section 94(2) of Legal Profession Act 1976,
where such advocate and solicitors shall be liable to be struck off the Roll; to be
suspended from practice for any period not exceeding 5 years; to be ordered to pay a
fine not exceeding fifty thousand Ringgit; or to be reprimanded or censured.
However, S.103E (1) of Legal Profession Act 1976 the advocate and solicitor
aggrieved by any final order or decision made by Disciplinary Board may appeal to
the High Court within 1 month upon receiving the notification of that order or
decision.

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