Wednesday, 7 April 2010

Judges can be sued

This is very interesting indeed.

Law of contempt review may be necessary
M Ramalingam
Apr 7, 10
I refer to the Malaysiakini report Matthias Chang admitted to

The law of contempt is entrenched in our justice system so that the
course of justice is not deflected or interfered with.

However, it should be used as a last resort and should be most
jealously and carefully guarded and exercised lest it becomes totally
arbitrary and unlimited.

I feel sorry for Mathias Chang. The right to criticism is a part of a
birthright of all subjects but that right cannot and must not be
stretched to the indignity of the court.

Contempt of court is an offence of a criminal character. A judge has
the inherent jurisdiction to severally reprimand the person or indeed
jail him if it can be satisfactorily proved that he has brought the
court into disrepute.

In this case, the judge has been judicious enough to grant the person
a chance to apologise for bringing the course of justice into
disrepute. However the power of the judge is institutionally
safeguarded and it is indeed rare for a judge to be cited for

There seems to be some uncertainty as to whether a judge acting
contrary to the law can also be liable for contempt in his own court.
There is a special provision in India's Contempt of Court Act 1971,
dealing with contempt by a Judge.

Section 16: Contempt by Judge, Magistrate or other person acting

(1) Subject to the provisions of any law for the time being in force,
a judge, magistrate or any other person acting judicially shall also
be liable for contempt of his own court or of any other court in the
same manner as any other individual is liable and the provisions of
this Act shall, so far as may be, apply accordingly.

This is one area of law that should be further researched although in
Malaysia, too, we have other provisions that recognise this, ie,
Chapter XI of the Penal Code under the heading Offences Against Public
Justice, for example:

Section 219: 'Whoever being a public servant, corruptly or maliciously
makes or pronounces in any stage of a judicial proceeding, any report,
order, verdict, or decision which he knows to be contrary to law shall
be punished with a term of imprisonment for a term which may extend to
seven years or with fine, or with both.'

Section 218 deals with a public servant framing an incorrect record or
writing with intent to save a person from punishment or property from
forfeiture. Section 204 deals with destruction of document to prevent
its production as evidence.

Section 19 states that the word 'judge' denotes not only every person
who is officially designated as a judge but also every person who is
empowered by law to give, in any legal proceeding, civil or criminal a

It is interesting to research as to whether judges in his Majesty's
Court in Malaysia have ever been cited for contempt.

It is not uncommon for judges themselves to sometimes abuse or misuse
their powers. If they do so knowingly, they themselves would be guilty
of a misuse of power and thereby can be cited for contempt. The
provisions stated herein above would give legitimacy for a judge,
prosecutor or any public servant to be cited for contempt if a case of
such action is brought before the court.

As a matter of fact, Section 21 defines public servant to include
every judge. A review of the law of contempt may be necessary so that
Justice could be tempered with mercy.

A case in point is that of Adorona Properties and Boonsum Boonyanit.
The highest court of the land has confirmed the perverse judgment of
the unjust judges. Can those judges be cited for contempt? Can there
be any hope of a recourse for those who have lost their land in this

The writer is past regional vice-president, Commonwealth Magistrates
and Judges Association, London.

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