Advent Of New Technologies Vs Sub Judice Rule

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A law firm representing the state-owned Sabah Mineral Management (SMM) Sdn Bhd recently warned Malaysiakini of contempt proceedings over the news portal’s article concerning the latest twist in the corruption scandal in the state.
It seems the contempt proceedings are linked to the SMM’s lawsuit against its ex-CEO Jontih Enggihon and an external third party Tei Jiann Chien whereby SMM managed to obtain an injunction from the Kota Kinabalu High Court.
The Malaysiakini article allegedly contains information and references to the process of licensing for mining, which is the subject of ongoing legal proceedings. It was therefore argued that the said article purportedly constitutes a breach of the said injunction on the ground it offends the doctrine of sub judice.
In simple terms, the sub judice rule deals with a publication about current legal proceedings that seeks to interfere with the due course of justice in particular proceedings.
Sabah Mineral Management ex-CEO Jontih EnggihonADSThe case of Syarikat Bekalan Air Selangor Sdn Bhd v Fadha Nur bt Ahmad Kamar & Anor (Tommy Thomas and I acted for the first and second respondents respectively in that case) is, in my view, the locus classicus precedent for sub judice especially in modern times.
In some old cases, the sub judice rule is made to appear as if it extended to the publication of anything which was likely or “tends to excite prejudice against the parties” while the litigation was pending.
It seems that this rule was, in fact, specifically created to duly safeguard the sanctity rule about a fair trial. Period. As the court should maintain its full integrity, a “trial by newspaper” or “trial by any media” other than the courts of law ought to be avoided at all costs.
With the advent of new technologies such as the internet and other relevant apps and networks, the lingering issue would be: can a comment on any ongoing trial per se, ipso facto amount to offending the sub judice rule, hence unlawful?
In Syarikat Bekalan Air Selangor Sdn Bhd v Fadha Nur bt Ahmad Kamar & Anor, the court was of the view that such a comment is not automatically caught by the sub judice rule. It ruled that at the end of the day, it is all a matter of proportion and circumstance.
Hence, the application for contempt in that case was dismissed and the said decision was later upheld by the Court of Appeal.
Contempt of court
Contempt of court is essentially an exception to freedom of speech and expression which is duly guaranteed under Article 10 (1)(a) of the Federal Constitution or under Article 19 of the Universal Declaration of Human Rights (UDHR).
The law of contempt of court is premised on the need to ensure that nobody would be given a carte blanche to unduly interfere in the administration of justice. Lord Diplock believed all the laws of contempt - either civil or criminal contempt - “ involve an interference with the due administration of justice”.
It goes without saying that public confidence in the judicial system is of paramount importance. Therefore, in administering its judicial function - which is mainly to uphold justice - it is often argued that any court of law ought to be free to exercise such a sacrosanct duty without fear and favour.
As far as common law traditions - and Malaysia practises common law - are concerned, judicial power, which is encapsulated under the doctrine of contempt of court, is inherently and incontrovertibly necessary for the workings of a system of administration of justice.
But in another great legal tradition i.e. civil law - the concept is “simply unknown”. In other words, in the civil law system, judges are generally not armed with the sword of contempt of court.
ADSConversely, in the civil law legal system, any non-compliance of the court’s order is a matter within the territory of the enforcing party only. Hence a breach of civil orders, for instance, is not considered a question of “public policy”.
However, the absence of such a court’s sanction does not mean civil law systems are bereft of any forms of sanction or threat to compel compliance with judges’ orders. Indeed they have.
For instance, in the French legal system, such a sanction is known as astreintes. In German, it is often dubbed as Geldstrafen. In Italy, “coercive measure” was first introduced in the Italian Code of Civil Procedure in 2009.
To be fair, SMM has the right to warn Malaysiakini of contempt proceedings over the news portal’s article regarding the latest twist in the corruption scandal in the state. Malaysiakini, on the contrary, probably argues the public interest mandates the portal to publish any issues entailing alleged corruption scandals, without fear and favour.
The usual mantra which is frequently invoked in justifying the law on contempt of court is a balance that must be struck between the right to freedom of speech and the need to protect the interest of the judicial system.
It is fascinating to note here that in the case involving the Sunday Times v United Kingdom in 1979, the European Court of Human Rights (ECHR) categorically rejected such an argument and in turn held that the proper approach should have been that the court, in actual fact, is not faced not with a choice between two conflicting principles, but with a principle of freedom of expression that is subject to several exceptions which must be narrowly interpreted.
The judgement by ECHR drives home this message, namely, the people’s limited right to such freedom of expression should never be further circumscribed. - Mkini
MOHAMED HANIPA MAIDIN is a former deputy minister of law.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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