MARCH 6 ― The High Court has reportedly allowed the attorney general (AG) to initiate committal proceedings against former Umno Supreme Council member Isham Jalil for contempt of court over remarks made regarding former prime minister Datuk Seri Najib Razak’s 1Malaysia Development Berhad and SRC International Sdn Bhd's cases.
Committal proceeding for contempt of court is quasi-criminal in nature since it involves the liberty of the alleged contemnor. Accordingly, there are procedural safeguards before a party is labelled as an alleged contemnor and committal proceedings allowed to be begun against him.
The first of the safeguards is leave of the court is required to commence committal proceedings. Order 52 rule 3(1) Rules of Court 2012 makes it clear that no application to a court for an order of committal against any person may be made unless leave to make such an application has been granted.
Application for such leave is made to the court ex parte by reason of Order 52 rule 3(2) which states in no uncertain terms that the application must be made ex parte to the court. Even so, there are safeguards.
The application must be supported by a statement setting out the name and description of the applicant; the name, description and address of the person sought to be committed; and the grounds on which the committal is sought.
The facts relied on must also be supported and verified by an affidavit, which must be filed before the application is made. The provisions of the rules are mandatory and non-compliance nullifies the proceeding.
All the relevant facts must be before the court to enable the court to make a fair and just decision. The applicant must set out the facts fairly, including the facts that are likely to be raised by the proposed alleged contemnor in objecting to the application if it were an inter parte application.
If any fact is likely disputed by the other party, the applicant must say so and give his reasons why such dispute is not sustainable, or is irrelevant or immaterial. The applicant is not to merely state the facts favouring his application and the court must not rely on that alone. Otherwise, the leave procedure would cease to be a safeguard and instead easily becomes a tool exploited for oppression.
In the case of Tan Sri G Darshan Singh v Tetuan Azam Lim & Pang [2013] 5 MLJ 541, the Court of Appeal found on the facts the application for leave had neglected to mention relevant and material facts. The grounds must be set out with sufficient particularity to enable the person alleged to be in contempt to meet the charge later.
In an earlier case of Folin & Brothers Sdn Bhd (in liquidation) v Wong Boon Sun [2009] 5 MLJ 362, the Court of Appeal held that the word “must” in the rules that it is mandatory, and has to be strictly complied with.
The details on which the applicant intends to rely must be set out in the supporting statement itself and not to be explained separately by way of submission by counsel, be it orally or in writing. (See The New Straits Times Press (M) Bhd v Ahirudin bin Attan [2008] 1 MLJ 814)
It was commendable of the High Court judge Justice Datuk Noorin Badaruddin to grant Isham the right to be heard during the leave application despite it being ex parte in nature.
It is an added safeguard before he is labelled as an alleged contemnor and committal proceedings allowed to be begun against him.
He is now an alleged contemnor and faces committal proceedings.
* This is the personal opinion of the writers or publication and does not necessarily represent the views of Malay Mail.
