It is probably time to spring Matthias Chang from gaol. He’s been in there for over 24 hours, is on a hunger strike, and that is about enough ammunition I think it wise to give the crazed chap—or we shall never hear the end of it when he comes out.
Chang may or may not have had a hand in hobbling the judiciary together with that pitiful disgrace that looks like, sounds like, but apparently isn’t V.K. Lingam; he may or may not be a rabid anti-Semite unable to differentiate the State of Israel from Jews in general. His book designs certainly induce vomitting (see for yourself).
The point is not Chang’s views; nor what he is alleged to have said (or not said) in court. It is not about what he has done in his service as political secretary to Dr Mahathir Mohamad, nor is it about his peculiar suit against American Express (I confess I have no idea what that was all about, but heard it had something to do with Antarctica).
The issue is Order 52 1A if the Rules of the High Court, which for the benefit of people who like this kind of thing, goes thus:
(1) If a contempt is committed in the face of the Court, it shall not be necessary to serve formal notice to show cause, but the Court shall ensure that the person alleged to be in contempt understands the nature of the offence alleged against him and has the opportunity to be heard in his own defence, and the Court shall make proper record of the proceedings.
(2) Where a Judge is satisfied that a contempt has been committed in the face of the Court, the Judge may order the contemnor to appear before him on the same day at the time fixed by the Court for the purpose of purging his contempt.
(3) Where such person has purged his contempt, by tendering his unreserved apology to the Court, and the Judge considers the contempt to be not of a serious nature, the Judge may excuse such person and no further action shall be taken against him.
(4) Where such person declines or refuses to purge his contempt, then the Judge shall sentence him.
This bit was inserted in 2000 by way of PU(A) 342/2000 after some agitation. But even then the nature of contempt and the limits of its punishment weren’t defined either here or anywhere in the relevant enabling legislation (the Federal Constitution and the Courts of Judicature Act).
Why is this a problem? Common law principles provide judges broad latitude in deciding, in any situation,what amounts to contempt. It also provides discretion in demanding and obtaining a fit remedy if the contemnor refuses to apologise.
This may work well enough in countries with strong independent legal traditions and where judicial activism is limited by learning and good sense. But what constitutes contempt? This all depends on whatever fool idea enters the judge’s head at the time. What is a fitting punishment? Answer ditto. Is this a good thing in a country where judges have, as a rule, made a habit of abnegating their own authority?
Am I in contempt right now by writing this seditious bit of nonsense? No, if we agree with the argument made by Raja Aziz Addruse 10 years ago. Contempt of court should not be relied on to preserve the dignity, if any, of a particular judge but to preserve the purity of justice. This is nice, but even then isn’t very clear sometimes: does arguing with a judge in court interfere with the due course of justice?
I’m not sure if anyone remembers this now, but in 1998 S. Augustine Paul (then in the High Court) committed Zainur Zakaria (now playing for the other team) to three months gaol for applying to discharge Abdul Gani Patail (now Attorney-General) and Azahar Mohamed (now not sure what he’s doing) on grounds that the latter two cooked up evidence against Anwar Ibrahim. How the hell did his application qualify as contempt? I have no idea but that was what Augustine Paul, in his now thankfully irrelevant wisdom, thought at the time.
Zainur won his appeal in the Federal Court three years later and Augustine Paul died unforgiven. There were other contempt cases that made the headlines (such as the one involving judge R. K. Nathan and Bar chief Sulaiman Abdullah), but this was the most celebrated at the time.
The charge against Matthias was that he lost his “cool”, whatever that is supposed to mean, “walked out of the witness box and thereafter left the Court during the Court proceeding.” (Page two of the committal order is here). His people have protested his coolness, and the losing of it, as a defect in the committal, but I have no idea if they will do anything about it.
Now then, suppose you are hauled up before an incompetent High Court Judge—this really doesn’t take much imagination, does it? Halfway through the show the other side makes an outrageous claim, say, that you have an extra head, and that this is against the order of nature and you should therefore be hanged.
“Ho, ho,” says the judge. “That is quite a thing.”
“No, m’lord,” you say. “That is a lie. Look I have only one.”
“Well I say you have two. Do you mean to call me a liar?”
“That you are, m’lord. With respect.”
“Pshaw. I shall hear of no such thing.”
“I must protest m’lord! This is an outrage,” you say, perhaps your face, or one of them, is a little red now. “I feel I must seek satisfaction from the Lord Chief Justice.”
“I say,” says the judge, “that is contemptible. Apologise, or cough up RM150,000, or you shall to gaol without passing go and withoutyour paltry $200 Monopoly money. Whatever it is, you shall do so in seven days.”
And that is that. Say sorry, have two heads and be hanged by one of them; cough up the money; or join Matthias in the new weight-loss programme at His Majesty’s pleasure.
The Commonwealth demanded that contempt be defined by statute. This is a good thing, provided the Bill is properly drafted by people, and not monkeys. The Bar apparently did come up with something a while ago, but I have not heard about it since.