JUNE 7 — Dewan Keadilan dan Undang (DKU) secretary Raja Norazli Raja Nordin reportedly planned to initiate contempt of court proceedings against six individuals, including three Undangs, for allegedly defying a High Court order linked to an ongoing dispute involving the royal institution.

What is planned is also called committal proceedings.

A committal proceeding is a legal process that allows courts to punish someone for disobeying a court order.

The courts are the impartial and final arbiter between the individual and the State and between individuals inter se.

If the courts are to play that role and perform that function, the course of justice must not be deflected or interfered with.

Committal proceedings serve to ensure the course of justice is not deflected or interfered with, and that litigants do not disregard court orders.

These are meant to be enforced so as to protect the rights of litigants.

Order 52 of the Rules of Court 2012 (ROC) governs committal proceedings. Rule 2 allows the court, on the application of any party to any cause or matter or on its own motion, to make an order of committal in Form 107, which states that the party against whom a committal proceeding is made to “stand committed to prison to be there imprisoned” if the court is satisfied that the party has been guilty of contempt of court.

The Order identifies two forms of committal for contempt of court.

First, committal for contempt in the face of the court. The contempt may be broadly described as any word spoken or act done in the court or in its precincts which obstructs or interferes with the due administration of justice or is calculated to do so.

In order to constitute contempt in the face of the court, it appears to be unnecessary that the act of contempt should take place wholly, or in part, in a courtroom itself.

Neither does it seem to be necessary that all the circumstances of the contempt should be within the personal knowledge of the judicial officer dealing with the contempt.

Second, committal for other cases of contempt. Rule 2B says in all other cases of contempt of court, a formal notice to show cause why the party should not be committed to the prison or fined shall be served personally.

Committal proceedings require leave of the court. Rule 3 is explicit and clear that no application to a court for an order of committal against any person may be made unless leave is given by the court to make such application.

The requirement for leave serves to ensure there is no abuse of the committal procedure. Leave to commence committal proceedings will only be granted if a prima facie case has been established.

The standard of proof is beyond reasonable doubt.

A prima facie case will be made out if the court is satisfied that a species of contempt has been committed by the party against whom the proceeding is made – that is, the respondent.

Disobeying an injunction or court order is a species of contempt.

The application for such leave must be made ex parte to the court by a notice of application supported by (a) a statement setting out the name, description, address and the grounds on which his committal is sought; and (b) an affidavit verifying the facts relied on.

The statement is very important and is said to be akin to a charge sheet in a criminal proceeding.

The applicant is therefore required to adequately describe and particularise the alleged act of contempt in the statement and must not misrepresent or mislead any facts in the statement.

Rule 4 requires that an application for an order of committal be made within 14 days after such leave was granted.

Otherwise the leave shall lapse. The rule also requires that the notice of application accompanied by a copy of the statement and affidavit in support of the application for leave and the order granting such leave be served personally on the respondent.

Where the respondent is an individual, the court order sought to be enforced must be served personally on the person required to do or abstain from doing the act in question.

The court order must be endorsed with a notice, called a “penal notice” in the prescribed form – that is, Form 83 – informing the respondent that if he or she disobeys the order, he or she is liable to process of execution to compel him or her to obey the order.

The penal notice must be endorsed on the order.

Be that as it may, where the court order requires a person to abstain from doing an act, the order may be enforced even if the order is not personally served if the respondent has had notice of it either by being present when the order was made or by being notified of it by telephone, telegram or otherwise.

The above is provided by Order 45 Rule 7(6) ROC.

In the case of Visiber Sdn Bhd v Tan Meng Them, the court order in question was prohibitory in nature as it restrained the respondents from carrying out certain acts.

The High Court held that pursuant to Order 45 Rule 7(6), the order was enforceable through committal proceedings notwithstanding that the order had not been personally served upon the respondents.

However, the court order could only be enforced if the respondents had notice of the terms of the order.

In the case of Maria Faridah Atienza v Hadijah Mohamaed Mokhtar & Anor [2018], knowledge of the order was imputed upon the respondent as the injunctive order had been served on the respondent’s solicitors.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.