We have discussed about the Contempt of Court Law in two parts. This
week, let us look at the International practice on this controversial
law. Contemporary scholars, Geoffrey Robertson and Andrew Nico 1 described
the offence of scandalising the court in England as "… an anachronistic
relic of 18th century struggles between partisan judges and their
vitrolic critics. Eric Barendt suggested that the offence of scandalising
the court is "now so unimportant in practice that it may appear fruitless
to spend much space in debating its justification".
Over a period of time, in evolved countries credible defences have
come in place such as 'courtesy and good faith' defence. In the words
of the queen's Bench in England, "no criticism of a judgement, whatsoever
vigorous, can amount to contempt of court, providing it keeps within
the limits of courtesy and faith". This defence mechanism has allowed
scholars and legal practitioners to launch significant criticism.
The letter from a Kenyan lawyer, Feroze Nawrojee became a cause of
contempt of court. Nawrojee in his protesting remarks mentioned that
" delay amounts in law to a refusal to adjudicate….. and the belief
that trust in our judges is a major contributor to the security of
that trust. The events taking place in this case tend to the erosion
of that trust." The Kenyan High Court determined that "courts could
not use their contempt power to suppress mere criticism of a judge
or to vindicate the judge in his personal capacity, but rather could
use it only to punish scurrilous abuse of a judge when necessary in
the interests of justice." It added "a judge must scrupulously balance
the need to maintain his or her authority with the right to freedom
of speech", and refused to find Nawrojee in contempt.
David Pannick argues that "public confidence in the judiciary is
not strengthened by the deterrence of criticism." Lord Atkin in the
Privy Council case of Ambard v. Attorney-General for Trinidad
and Tobago ruled that "the path of criticism is a public way. The
wrong-headed 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, and are genuinely exercising
a right to criticism, and not acting in malice or attempting to impair
the administration of justice, they are immune. Justice is not a cloistered
virtue, She must be allowed to suffer the scrutiny and respectful,
even though outspoken, comments of ordinary men."
Sometimes the judiciary is viewed to have found itself
chastened by government efforts to cajole and browbeat it into falling
in line with state diktat. In the case of Tanzania, according to M.K.B.
Wambali abd C.M. peter, "the government and the party play a vital,
if not a decisive, role in determining who will man various positions
in the judiciary. This in a way has a bearing on the work of this
important institution. ….The very fact that the executive makes appointments
has at times tended to make members of the judiciary subservient to
the executive and the party." Robertson and Nicol went on to say that
" in certain Commonwealth countries there does exist an unhealthy
relationship between judges and the government tat appoint them".
The Malaysian Supreme Court has gone even further and cast its vote
against even temperate criticism. In Attorney general and Others
v. Lee (1987) LRC (Crim) 580 Mal SC, it has gone so far as to
hold: "For the present, except possibly- and we say this with great
reservation- for the limited purpose of proving it in actual court
proceedings, any allegation of injustice or bias, however couched
in respectful words and even if expressed in temperate language, cannot
be tolerated, particularly when such allegation is made for the purpose
of influencing or exerting pressure upon the court in the exercise
of its judicial functions". Thus the Malaysian Court rules that intent
can be found by reading into what the Court referred to as "implicit
threats". Development of such jurisprudence where implicit threats
are read into the written word, and even temperate criticism is outlawed
on that basis, confirm that the offence of scandalising the court
continues to gain hazardous new ground.
A more powerful challenge to the public confidence argument was advanced
by Justice Amua Sekyi of the Supreme Court of Ghana who wrote the
dissenting judgement in the Republic v. Mensa Bonsu case. A
newspaper columnist, an editor, and the printer/publisher were prosecuted
for publishing a letter accusing a judge of making wrong attributions
and changing the orders that had earlier been dictated in open court.
The majority of the Supreme Court of Ghana ruled that "imputation
of lack of impartiality by the judge and statements describing him
as a liar and one guilty of criminal behaviour amounted to scurrilous
abuse imputing improper motive … It was therefore contempt of the
Supreme Court when scurrilous abuse was directed even at one member."
Justice Sekyi of the Supreme Court of Ghana in his dissenting judgement
argued that "courts must have regard to the right of every person
to express himself freely and openly on all matters of public concern
whether pertaining to the actions of the executive, the legislature
or the judiciary. The ordinary laws of libel were the only check on
any abuse of the right of free speech in circumstances such as these".
Joined by two judges, Justice Sekyi made three important points: judiciary
should not demand immunity that is not accorded to the legislature
or the executive. Any aggrieved judge has access tot he ordinary laws
of libel to prosecute defamatory speech if the criticism is malicious
and unjustified. The robust debate on matters of public interest must
not be interpreted as efforts to obstruct the course of justice. .........................To
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