Curtailing Free Expression, Opinion and Information Online in Southeast Asia Court of Appeal and High Courts of Malaysia the power to punish contempt of court.368 Other domestic laws extend this power to other subordinate courts, including Magistrates’, Sessions and special courts.369 There is, however, no statutory or authoritative legal definition otherwise in Malaysia. Even as it operates as a common law doctrine, a clear definition of criminal contempt of court has not emerged within judicial pronouncements – allowing for wide judicial discretion that can limit freedom of expression.370 Academic observers and practitioners have highlighted the need for reform to ensure not only clarity in definition, but also consistency in procedural rules and sentencing limits pertaining to criminal contempt cases – to prevent adjudication of such cases in an “arbitrary, subjective and personal” manner.371 These commentators, along with the Malaysian Bar, have highlighted that criminal contempt of court should only be applied “sparingly”, and as a “last resort in the interest of administration of justice”, to limit infringement on the right to free expression.372 Case of Arun Kasi In February 2019, lawyer Arunachalam s/o Kasi (‘Arun Kasi’), had committal proceedings initiated against him by Attorney-General Tommy Thomas, following his publication of two articles that month on online news portal, ‘Aliran’, where he had made comments said to be critical of the proceedings of the Federal Court of Malaysia.373 His first article titled ‘How a dissenting judgment sparked a major judicial crisis’, and second article, titled ‘Tommy Thomas must look into arbitration centre that sparked Publications/FC/Federal%20Consti%20(BI%20text).pdf Ibid. Venugopal and Hassan, 2012, pp. 1455 to 1456. Venugopal and Hassan, 2012, pp. 1454 to 1455. Venugopal and Hassan, 2012, p. 1463; Jerald Gomez, ‘Contempt of Court — Freedom of Expression and the Rights of the Accused’ (2002) 3 MLJ ccxli – ccciv (‘Jerald Gomez, 2002’), Available at: http://jeraldgomez.com/wp-content/uploads/2018/01/MLJ-Contempt-of-CourtFreedom-of-Expression-and-the-Rights-of-the-Accused.pdf 372 In April 2019, the President of the Malaysian Bar noted, “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”.” Abdul Fareed Abdul Gafoor, ‘Press Release | Arun Kasi Found Guilty of Contempt of Court’, 23 April 2019 (‘Malaysian Bar, 23 April 2019’), Available at: http://www.malaysianbar.org. my/press_statements/press_release_%7C_arun_kasi_found_guilty_of_contempt_of_court.html; See also Venugopal and Hassan, 2012, p. 1463; Jerald Gomez, 2002, p. 20. 373 The Star Online, ‘Contempt proceedings against lawyer Arun Kasi over Hamid affidavit articles in Aliran (updated)’, 27 February 2019, Available at: https://www.thestar.com.my/news/ nation/2019/02/27/contempt-proceedings-against-lawyer-arun-kasi-over-hamid-affidavit-articlesin-aliran#CA0XyKX8v4xL8PjE.99 368 369 370 371 101