Scandalising the court

At a time when superior courts are wielding contempt powers as a sword, there is a need to consider whether the offence of scandalising the court should exist at all in this day and age. There can be no question that for constitutionalism and rule of law to exist and prosper, courts must be seen as impartial guardians of the law. The question then is whether the perception of impartiality rests on the conduct and decisions of courts or on forbidding criticism of their conduct and decisions. Who should bear the burden of the court’s shame: the court or the people?

We have inscribed in our law this offence founded in common law. But the UK Law Commission after wide consultation recommended in 2012, “that scandalising the court should cease to exist as an offence or as a form of contempt.” The questions for us are: should judges, as public officials exercising state authority, be immune to criticism and accountability? Should restrictions on free speech be construed narrowly in a democratic society or widely to deter criticism of judges? Should judges be judges in their own cause?

The UK Law Commission report articulates key arguments in favour of abolishing the offence of scandalising judges as follows: “prosecutions can have the effect of increasing the harm caused by the act complained of and is counterproductive in that it conveys the impression that judges are protecting their own. The offence has been criticised on the ground of freedom of expression, and it has been argued that judges do not need special protection not given to any other public officials. The old argument that judges need protection because they cannot answer back has less force than it did.”

The report notes that, “much of what would formerly have been considered to be scurrilous abuse has today to be recognised as no more than acceptable if trenchant criticism”, that “preventing criticism contributes to a public perception that judges are engaged in a cover-up and that there must be something to hide.” It highlights the self-serving nature of the offence liable to abuse to protect the sensitivities of judges: “there is something inherently suspect about an offence both created and enforced by judges which targets offensive remarks about judges.”

The report argues that, “the offence of scandalising the court arose in an era where deferential respect to authority figures was the norm. This is clearly no longer the case to nearly the same extent as it was…For example, in 1987 the Daily Mirror published upside down photographs of three Law Lords concerned in the Spycatcher litigation, with the caption “YOU FOOLS”. This would certainly have been regarded as scandalising contempt if it had been published a century earlier.”

The conclusions drawn by the UK Law Commission find support across the civilised world. Lord Atkin had famously stated for Privy Council as far back as 1936 in Ambard v Attorney General of Trinidad and Tobago that “justice is not a cloistered virtue”, while explaining that, “the path of criticism is a public way: the wrongheaded are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice…”

Lord Denning emphasized in Regina v Commissioner of Police (1968) that the contempt law doesn’t exist as a self-serving tool for judges: “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.” This mode of thinking isn’t peculiar to judges in the UK alone.

US Supreme Court Justice Hugo Black stated in Bridges v California (1941) that, “the assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. ... an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.” The US interferes with free speech only if there is “clear and present danger” to administration of justice.

Canada too has adopted the imminent danger test. In R v Koptyo (1987), Cory J held that, “an unsuccessful litigant may well make comments after the decision is rendered that are not felicitously worded… But the courts are not fragile flowers that will wither in the hot sea of controversy… The courts have functioned well and effectively in difficult times. They are well regarded in the community because they merit respect. They need not fear criticism nor need to sustain unnecessary barriers to complaints about their operations or decisions.”

In AG for New South Wales v Mundey (1972), Australia’s Justice Hope stated that, “there is no more reason why acts of courts should not be trenchantly criticised than acts of public institutions, including parliaments. The truth is of course that public institutions in a free society must stand upon their own merits: they cannot be propped up if their conduct does not command respect and confidence of a community; if their conduct justifies respect and confidence of a community they do not need protection of special rules to shield them from criticism.”

The European Court of Human Rights has prescribed a three-fold test for judging restrictions against free speech: restrictions are to be “prescribed by law”; must further the “legitimate aim” of preserving administration of justice; and must be “necessary in a democratic society”. South Africa’s Constitutional Court in State v Mamabolo (2001) held that, “scandalising the court is not concerned with self-esteem or even reputations of judges as individuals…ultimately the test is whether the offending context, viewed contextually, really was likely to damage the administration of justice.”

Shouldn’t our superior courts reconsider the interpretation and application of the contempt law? No one can be allowed to obstruct dispensation of justice and thus criminal contempt makes abundant sense for it protects the rights of litigants. Likewise, civil contempt exists as the main tool to enforce judgments and give effect to rights of litigants upheld by courts. But judicial contempt employed in the name of administration of justice can be a fig leaf to shield judicial conduct and decisions from criticism. This must be done away with.

Isn’t conflict of interest inherent in judges evaluating criticism of judges to determine whether it is of a nature that scandalises judges? The Judicial Code of Conduct says that, “a judge must decline resolutely to act in a case involving his own interest.” Two basic principles of fairness recited in courts daily are that, “no one can be a judge in his own cause”, and that “justice is not just to be done but also seen to be done.” But our jurisprudence suggests that these principles are somehow not attracted when it comes to judicial contempt.

Conviction of contempt attracts a jail term of up to six months. But our courts have held that jurisdiction in the matter of contempt isn’t criminal but sui generis (ie unique). Consequently, the foundational principles of criminal law (that penalties against an accused are to be strictly construed, that the accused must be given benefit of doubt, that mens rea must exist to make an act criminal, and that onus of proof rests on the prosecution) aren’t attracted when it comes to contempt. Such exceptional treatment reemphasises the underlying conflict.

Isn’t it time for our Supreme Court (which is accountable to no one but itself) to state unequivocally that it welcomes trenchant such criticism of its rulings that encourages introspection, that it will not fetter the fundamental right to free speech in the name of justice, that it is no holy cow demanding blind deference from citizens, and that the burden of keeping its dignity rests on its own shoulders and not on those at the receiving end of the justice it dispenses?

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu