Committal proceedings in Malaysia are one of the common legal proceedings in Malaysia. In this article, we explain what is committal proceedings, the processes, and how to defend against them.
What is Committal Proceedings in Malaysia?
Committal proceedings are a legal process that allows courts to punish someone for disobeying a court order. This is to ensure due administration of justice and litigants do not disregard court orders.
In general, laws are to ensure the proper and due administration of justice. Thus, under the common law, when someone disregards court orders or disrespects the court, then it is an offense of contempt of court and can be penalised by the court.
There are 2 types of contempt of court which are:
Civil contempt
This happens when someone fails to comply with the terms and conditions of a court order or judgement. In some cases, when someone shows disrespect to the court or lies to the court, it is said to be contempt in the face of the court.
Criminal contempt
This is when someone tries to interfere with the due administration of justice by the court. Examples include advocates and solicitors/lawyers making public comments to influence court decisions.
In Malaysia, the higher courts, including the Federal Court (used to be called as ‘Supreme Court’), High Court and subordinate courts, are given power under the Courts of Judicature Act 1964 and the Subordinate Courts Act 1948 to punish contempt of court in judicial proceedings.
Thus, when there is non-compliance with courts orders, the innocent litigants can engage a lawyer to initiate committal proceedings against the defaulter. The other ways to enforce court judgment include garnishee orders and judgement debtor summons.
Processes of Committal Proceedings
The procedures and process for committal proceedings are under the Rules of Court 2012 which are explained below:
Eligibility
Before one commences comital proceedings, he should fulfil the below requirements (if it is a case of the others failing to comply with court orders) which are:
(a) Sending the court order personally on the person required to do or abstain from doing an act as stated in the order and
(b) The other person fails to do something within the time specified in the order. Examples include when a defendant in a case fails to deliver a property within the time stated in the order.
After satisfying these pre-requirements, then he can move to the next stage of committal application which is to apply for leave/permission from the Court.
Apply for leave from the Court Ex-Parte.
The applicant must then get leave from the court, that is, by submitting cause papers named notice of application supported by a statement which states:
(a) Name, description and address of the alleged defaulter (called a ‘respondent’)
(b) Details of the alleged contempt: The applicant can state that the respondent has the obligation and should comply with the court order but fails to do so and the manner/way in which he fails to for the purpose of committal application.
The notice of application is then supported by an affidavit sworn by the applicant. The applicant then proceeds with filing the leave application together with all required cause papers in the court registry and pays the required court fees.
The court will then schedule an ex-parte hearing (‘ex-parte’ means a preliminary hearing where the judges hear the application without the presence of the other party, the respondent).
During this ex-parte stage, the applicant must show to the judges that he has a prima facie case, meaning showing the circumstances and conduct of the respondent that he has committed contempt of court on balance of probability
The judges after reviewing the documents, will then make an ex-parte order granting the leave if it is satisfied with the application after having regard to the law and the procedures.
Inter-partes application
After getting the leave through the ex-parte order, the applicant can then proceed with the contempt proceedings by applying to the court for an inter-parte hearing. Inter-parte means the applicant and the respondent should be present together for the hearing.
The applicant can for the inter-parte hearing by following the below procedures:
(a) Filing a notice of application in the Court registry. The notice should state brief grounds for the application and alleged acts of contempt by the respondent.
(b) Serve the notice of application, statement, affidavit and order granting leave (these are documents in the earlier ex-parte stage) to the respondent.
Inter-Parte hearing
The judge will then schedule a date for a hearing and determine whether a contempt of the court has been committed. During the committal hearing, the parties can be represented by the lawyers.
The applicant will have to produce sufficient evidence that the respondent has committed contempt of court beyond reasonable doubt. On the other hand, the respondent can give oral evidence and oral explanation as to why he should not be committed to committal. Here, it is different from a usual trial, as usually witnesses are not called.
After the hearing, the court will then make orders, that is to dismiss the application or make an order of committal. Committal orders can include civil imprisonment of up to 6 weeks (in the form of a warrant of committal) and penalties/fines.
With the granting of the order, the committal process is complete. The dissatisfied party can then appeal against the court decision to the higher courts.
Alternatives by Respondent
When a respondent is sentenced to contempt of court, he has 2 options, which are to:
Suspend the execution
Here, the respondent can apply to the Court for the committal order to be suspended/postponed for a certain period. Possible reasons include that he has appealed to the higher Court against the main court order and the postponement is to preserve the status quo.
Discharge
The respondent can also apply to the Court to discharge/revoke the committal order. Possible reasons include the applicant being successful in the appeal against the main court order.
If you are looking for legal representation or legal representative for litigation matters or court proceedings, please feel free to contact us. Our team handles committal proceedings and can assist you.
Conclusion
Committal proceedings in Malaysia are one of the best methods to enforce judgment and compliance with court orders. If you need any legal advice with committal procedure, do contact us and we will assist you.
Frequently Asked Questions
1. What are committal proceedings in Malaysia?
Committal proceedings are a type of legal proceedings whereby one is being accused/tried for committing contempt of court such as failing to comply with a court order. The court procedures are under the Rules of Court 2012.
2. What is the meaning of committal decision?
The committal decision means the order of the Court made in committal proceedings. It can be dismissing the application or there is an order of committal, in the form of fines, civil imprisonment (up to 6 weeks), or reprimand.
