The Malaysian Bar is deeply concerned with the decision of the Federal Court today in finding Arunachalam s/o Kasi (“Arun Kasi”) guilty of contempt of court, and the steep sentence of 30 days’ imprisonment and a fine of RM40,000 and, in default of the fine, a further 30 days’ imprisonment.
It has been reported in the online media that during mitigation of his sentence, Arun Kasi had said that he had not intended to undermine the Judiciary, but only wanted reforms to be carried out in the Asian International Arbitration Centre (Malaysia).
First and foremost, it is crucial to appreciate that the law of contempt serves the public interest. The root principle on which the law of contempt is founded is not to vindicate the dignity of any particular judge or the Court itself, but is, in the words of our Federal Court, to “prevent an undue interference with the administration of justice in the public interest”. There is a complex interplay between this objective and the fundamental liberty of freedom of speech and expression, which is enshrined in Article 10 of the Federal Constitution. A balance between these two weighty concerns — one relating to the public interest, and the other to individual liberties — must therefore be struck.
The prosecution of contempt against Arun Kasi and the sentence meted out create a negative perception of a stifling effect on public discourse, which is exacerbated by the lack of clear parameters governing the offence. The Malaysian Bar is of the view that — as was submitted by our counsel in the Federal Court today — custodial sentences should not be imposed for contempt of court except perhaps for the most serious cases imaginable.
Every individual has the right to make fair comment — within the boundaries of courtesy and good faith — on any matter of public importance. In no way should criticism of court decisions within these limits be viewed as contemptuous. In order for judicial decisions to stand the test of time, they must survive the test of public scrutiny. Only then can they be seen as sound judgments that are worthy to govern our conduct and direct our actions.
To this end, the Malaysian Bar notes that the offence of “scandalising the Court” has been abolished in the United Kingdom (England and Wales). It bears reminding that the Court’s power to punish for contempt should be used sparingly and, as recently held in our High Court, as a “last resort in the interest of administration of justice”.
We understand that Arun Kasi’s requests for the audio recordings (“CRT recordings”) of the earlier proceedings of his case had been rejected by the Court. As he intends to apply for a review of today’s Federal Court decision, the Malaysian Bar urges the Court to accede to his request without delay. All relevant and requisite information or materials must be made available to Arun Kasi, as the affected party, to enable him to take legal advice and prepare for his case.
Abdul Fareed Abdul Gafoor
President, Malaysian Bar
23 April 2019