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A law rarely applied

July 12, 2012


THE government’s efforts to save the new prime minister from the contempt of court guillotine may not work. The chief justice has already spoken his mind. A law that is in conflict with the provisions of the constitution will be struck down.

Eventually, it is the Supreme Court that will interpret Article 204 of the constitution. Given that daggers have now been publicly drawn, the government is not likely to get any relief.

In modern jurisprudence, even where the law for scandalisation and ridiculing the judiciary exists it is rarely applied. The restored judiciary has, unfortunately, used it without mercy. Judges were issued notices of contempt, one prime minister has been sent packing and numerous officials are daily threatened with its application.

Generally, a judiciary should be respected and revered as a pivotal institution for the promotion of the rule of law and democratic values rather than be feared for its power.

It is rightly argued that contempt laws help to ensure that the authority of the courts is not undermined. It prevents public confidence in the administration of justice from being undermined. It is also argued that the contempt law shields judges who otherwise cannot answer back to unfair and lethal criticism. However, the criminalisation of scandalising the judiciary suppresses free speech and does not raise the image of the judiciary. And the resort to penalising people for contempt of court tarnishes the graceful image of any judiciary.

This is precisely the debate that is taking place in the House of Lords in the UK, where the last successful prosecution for scandalising the courts took place in 1931. Recently, a former secretary of state for Northern Ireland, described a judge as being “high-handed and idiosyncratic” in his autobiography.

The attorney-general for Northern Ireland brought criminal proceedings against him for scandalising the courts. Though the secretary was eventually pardoned, it nevertheless set off alarm bells. The House of Lords said that the action had a chilling effect on free speech. Repealing the law, it argued, was necessary to put “this pitiful legal animal” finally to sleep.

Some members of the House of Lords also called for restraint in criticism of the judiciary while acknowledging that “a little bit of dynamic tension between politicians and the judiciary in a democracy” always exists.

Similarly, the bar and the bench too cross swords but this should remain within the realm of decency on both sides. A member recalled instances where lawyers irked the judges and the media ridiculed courts but none were ever subjected to the law of contempt of court.

Barrister E. E. Smith frequently clashed with judges. An infuriated judge once asked him, “Mr Smith, what do you think I am here for?” Promptly Smith replied, “My Lord, it is not for me to question the inscrutable workings of providence.” Another quoted the Daily Mirror referring to judges in the Spycatcher case as “fools”. No prosecution followed.

A member of the House of Lords described his experiences as a judge in Northern Ireland. He was often scandalised and he deeply resented it and agonised over it but he did not for “one moment” consider initiating contempt proceedings. The former judge simply acknowledged that judges have to be able to take these things. It was part of what they have to do and they must shrug their shoulders and get on with it with grace.

There was absolute consensus that despite the desirability for restraint, a criminal offence or sanctions for scandalising the court was “quite antiquated and unnecessary”. Others regarded the offence as archaic and obsolete.

The members of the House of Lords pointed out the irony that public confidence in a judiciary is in fact diluted far more by “legal proceedings that suggest that the judiciary is a delicate flower that will wilt and die without protection from criticism than by a hostile book or newspaper comment that would otherwise have been ignored”.

The House of Lords rejected the argument that judges cannot respond to outrageous criticism. Nowadays they do respond. Judges have brought and won defamation suits, protected themselves against the law of contempt, petitioned for their seniority and gone further.

In our experience they also use the media very skilfully. The abuse of a judge in court is anyway covered by the contempt law and does not require resort to scandalising the judiciary. Other laws are there to cover attempts to corrupt, threat or defame a judge.

In conclusion, a balance has to be struck. Freedom of expression and equality before the law must be placed on a similar threshold as the independence of the judiciary.

The independence of any democratic institution depends on itself. Eventually, any judiciary will be judged on its performance, integrity and capability rather than on the basis of the criticism of its detractors.

The PPP-led government’s attempt to reform the law of contempt will promote neither freedom of speech nor discourage the abuse of contempt laws. Legal reforms should be based on principles of law that will develop the concept of the rule of law, rather than for self-interest.

The law of contempt deserves to be modernised but more importantly, the judiciary must itself use the law very exceptionally and interpret it liberally. After all, the basic cry of the lawyers’ movement was to restore the rule of law and to benefit from a judiciary that is liberal and strong — and not powerful and self-indulgent.

The writer is a lawyer and human rights activist.