Volume 16 - Issue 20, Sep. 25 - Oct. 08, 1999
India's National Magazine on indiaserver.com
from the publishers of THE HINDU
Table of Contents
Questions of contempt
In entertaining possible contempt of court punitive action against the writer Arundhati Roy for her essay, "The Greater Common Good" (published as the Cover Essay in Frontline, June 4, 1999), and against the Narmada Bachao Andolan (NBA), the Supre
me Court of India is on slippery ground. With obsolete approaches to the purported offence of 'scandalising the court' and 'eroding public confidence in the judiciary' and unsound and unsustainable efforts to shield judges from criticism, both sharp and
moderate, the matrix of freedom of expression, which is strongly protected in Article 19 of the Indian Constitution, could come under pressure and threat. Zahid F. Ebrahim, a Pakistani lawyer and legal scholar, presents an unusually insightful and clear-
headed analysis of the international position on matters of contempt of court in this article contributed at the invitation of Frontline.
- Editor, Frontline.
ZAHID F. EBRAHIM
IN 1937, Justice Cardozo of the United States Supreme Court described freedom of expression as "the matrix, the indispensable condition, of nearly every other form of freedom." Accurate as it is powerful, Justice Cardozo's matrix theory lies at the heart of all defences of the right of freedom of expression. Yet, in many countries, the courts of law, the ultimate guarantors of free expression, have found it difficult to come to terms with free speech critically directed at the courts themselves.
The laws of contempt are primarily designed to balance the freedom of expression with the judiciary's quest to maintain its authority and safeguard public order. Broadly speaking, contempt of court falls into three general areas: (i) violation of an orde r of a court, (ii) interference in the judicial process, and (iii) criticism of a judge, his or her judgment, or the institution of the judiciary.
The contemporary law of contempt, which seeks to prohibit the criticism of the judge, his or her judgment or the institution of the judiciary, now re-emerged as a matter for public debate with the Supreme Court of India's ire being directed at the Booker Prize winning author of The God of Small Things. The matrix is under threat.
The criticism of a judicial officer, his or her judgment or the institution of the judiciary is generally recognised in the Commonwealth countries as the offence of scandalising the court. Contemporary scholars, such as Geoffrey Robertson and Andrew Nico l, view the offence of scandalising the court in England as "...an anachronistic relic of 18th century struggles between partisan judges and their vitriolic critics". Echoing such views, Eric Barendt suggests 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."
However, across the world, 'scandalising the court' continues to pose significant challenges to the rights of free expression guaranteed by national constitutions and international covenants. Even in such hostile environment, credible defences have evolv ed, and at times have even been adopted by the courts.
The 'courtesy and good faith' defence is one such defence. In the words of the Queen's Bench in England, "no criticism of a judgment, whatsoever vigorous, can amount to contempt of court, providing it keeps within the limits of courtesy and good faith." In many jurisdictions, the courtesy and good faith defence has allowed scholars and legal practitioners the ability to launch significant criticism and gain new ground for free expression.
The letter from a Kenyan lawyer, Feroze Nawrojee, which became the cause of a contempt action against Nawrojee, is a good example of how courtesy and good faith may be artfully woven in with powerful critique. Frustrated by a judge's delay in deciding a motion to stay proceedings in a traffic offence case in which a prominent critic of the Kenyan government had been killed, Nawrojee wrote in protest: "It is unusual that in the meantime the same learned judge has dealt with several hundred matters as dut y judge and left this one matter as yet uncompleted. Such delay amounts in law to a refusal to adjudicate...These departures from the usual, the indefinite delay, despite reminders and the willingness to specify a fixed date, may create the impression th at the ruling is being tailored...I convey my anxiety at the unusual treatment of this or any applicant to our courts, 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 aggrieved judge attempted to prosecute Nawrojee for the offence of scandalising the court. However, 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 hi s personal capacity, but rather could use it only to punish scurrilous abuse of a judge when necessary in the interests of justice." The High Court stressed that "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.
Courts have vigorously punished offensive speech directed at the judiciary on the grounds that intemperate criticism of the court leads to erosion of public confidence in the judiciary. Throughout history, courts have concluded that public confidence in the judiciary is both vital and fragile and therefore requires special protection from offending free expression. As David Pannick explains, "The grandiloquent fear that criticism of the courts may endanger civilisation has, in the 20th century, continue d to lead to the punishment of persons who have insulted members of the judiciary or impugned their impartiality."
But the very basis of the public confidence has been laid bare by David Pannick as he argues that "public confidence in the judiciary is not strengthened by the deterrence of criticism." After all, Lord Atkin in the Privy Council case of Ambard v. Att orney-General for Trinidad and Tobago, had 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 admini stration of justice, and are genuinely exercising a right of 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 re spectful, even though outspoken, comments of ordinary men."
Questioning the presumption that judges are beyond bias
The threat to public confidence argument is predicated on the assumption that the judiciary is incapable of bowing to outside influences and immune from bias or prejudice. Courts are loath to admit that they may be susceptible to political, economic and moral prejudices that hold favour in a society.
When the Chief Minister of Kerala publicly proclaimed that "Marx and Engels considered the judiciary as an instrument of oppression and even today...it continues to be so," he was charged with contempt of court in the case reported as E.M.S Namboodiri pad v. T.N. Nambiar, AIR 1970 Supreme Court 2015.
The Chief Minister had also alleged that "judges are guided and dominated by class hatred, class interests and class prejudices and where the evidence is balanced between a well-dressed, pot-bellied rich man and a poor, ill-dressed and illiterate person, the judge instinctively favours the former."
Reasoning that "the likely effects of his words must be seen and they have clearly the effect of lowering the prestige of judges and courts in the eyes of the people...," the Supreme Court of India ruled that "...there is not a semblance of doubt in our minds that the appellant was guilty of contempt of court." The possibility that the Chief Minister's charge had any grain of truth did not receive consideration by the court, since truth is not a defence when proceeded against for contempt.
Some jurisdictions have had to contend with the dangerous area of bias within the judiciary where the judiciary finds itself chastened by government efforts to cajole and browbeat it into falling in line with state diktat. Consider, for instance, the cas e of Tanzania, where according to M.K.B. Wambali and 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." Although the "Constitution also provides safeguards to the judges (to maintain their independence)...experience has shown that these safeguards are formal enactments and are not all that water-tight. Judges have been transferred from the j udiciary and given other responsibilities in government service. 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."
Tanzania is no solitary example, and in other countries too newspapers and journalists who expose and protest against efforts to make the judiciary subservient to the executive have found themselves muzzled by strident prosecution under contempt laws. As Robertson and Nicol note, "in certain Commonwealth countries there does exist an unhealthy relationship between the judges and the government that appoint them..." When the Belize Times Press published an article entitled "Predicament of Change", stating that "the courts have been reshaped. Both the Chief Justice and the sole Puisne Judge had been replaced. The courts which represent the seat of justice and fair play, the institution where arbitrariness and tyranny may be checked and controlled , had been transformed by the new administration," it faced a successful action for the offence of scandalising the court. It is a moot point whether this was, in fact, a statement in support of judicial independence.
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 as 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."
With this, the Malaysian Supreme Court not only determined that even temperate criticisms are not protected if these are motivated by intent to influence the court, but, more dangerously, ruled that intent can be found by reading into what the court refe rred to as "implicit threats". Development of 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.
In a startling decision, the Indian Supreme Court in Sanjiv Datta & Ors, (1995) 3 SCR, not only relied on the erosion of public confidence in the judiciary argument to justify restricting free speech but also argued that the deference in which the judiciary is held must be equally safeguarded. In the Sanjiv Datta case, contempt proceedings were initiated against Sanjiv Datta, Deputy Secretary in the Ministry of Information and Broadcasting (MIB) of the Government of India, for filing an affidavit critical of the court's interlocutory order in a case where the Supreme Court had permitted a multinational broadcasting corporation to broadcast a cricket match by generating its own signals. Although the decision of the Supreme Court was complied with in letter and spirit by the MIB, Datta filed an affidavit expressing grievance at the court's decision to allow a foreign broadcasting company to generate its own signals in India. Datta's affidavit protested that the Supreme Court had "...erred in law by entertaining this petition and thereafter passing interim orders with undue haste... thereby causing irreparable damage to the respondents (MIB) by making a mockery of the established policy of the Government of India by permitting a foreign corporati on to undertake broadcasting from India against the national interest and thereby undermining the sovereignty of the (nation)..." The Supreme Court promptly initiated contempt proceedings against Datta and he was served with a show cause notice asking hi m to explain why he should not be proceeded against for contempt. In reply, Datta pleaded that he was "truly and sincerely sorry" and tendered an unconditional apology for such utterances.
The Supreme Court, however, was not forgiving. It reasoned that Datta's statements were "...a malicious attempt to cast aspersions on and attribute motives to the court." According to the court's deductive reasoning, "if such trends as are displayed in t hese proceedings by the contemner are allowed to go scot-free, there is a danger of the erosion of the deference to and confidence in the judicial system... and an invitation to anarchy." Datta was found guilty of contempt and was sentenced to pay a fine of Rs.2,000 and, in default, to undergo simple imprisonment for one week.
Although Datta's criticism is vigorous, the "invitation to anarchy" discovered by the Supreme Court in Datta's affidavit is beyond comprehension. Equally important, and here is perhaps the more troubling aspect, the court claimed that Datta's statements were eroding the "deference" in which the court is held. Thus the Supreme Court edged towards yet another standard under which freedom of expression would be chastened.
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 judgment in the Republic v. Mensa Bonsu case. In Republic v. Mensa Bonsu, a newspaper colu mnist, an editor and the printer/publisher were prosecuted for contempt of court for publishing a letter which accused a judge of making wrong attributions and changing orders that had earlier been dictated in open court. The majority of the Supreme Cour t of Ghana reasoned 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."
In contrast, Justice Sekyi of the Supreme Court of Ghana argued in his dissenting judgment in the Mensa Bonsu case that "courts must have regard to the right of every person to express himself freely and openly on all matters of public concern whe ther 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: first, that the judiciary should not demand immunity that is not accorded to the legislature or the executive; second, that any aggrieved judge has access to the ordinary laws of libel to p rosecute defamatory speech, if the criticism is malicious and unjustified; third, that robust debate on matters of public interest must not be interpreted as efforts to obstruct the course of justice.
Unfortunately, even minority voices such as that of Justice Sekyi continue to be pushed back by judgments advancing anachronistic arguments of cultural relativism. In 1899, the Privy Council ruled in the case of McLeod v. St Aubyn that "committals for contempt of court by scandalising the court itself have become obsolete in this country. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them. But it must be considered that in small colonies, consisti ng principally of coloured populations, the enforcement in proper cases of committal for contempt of court for attacks on the court may be absolutely necessary to preserve in such a community the dignity of and respect for the court."
Almost a hundred years later, in 1998, the Privy Council reiterated this opinion in its judgment in Gilbert Ahnee v. D.P.P., in an appeal from the Supreme Court of Mauritius. After gingerly iterating that the offence of scandalising the court exis ts 'in principle' to maintain the public confidence in the judiciary, the Privy Council went on to consider whether such offence is reasonably justifiable in a democratic society. The Law Lords reasoned that "in England such proceedings are rare and none have been successfully brought for more than 60 years. But it is permissible to take into account that on a small island such as Mauritius the administration of justice is more vulnerable than in the United Kingdom. The need for the offence of scandalis ing the court is greater on a small island."
The European Court of Human Rights, in a narrow 5-4 decision in the Prager & Oberschlick case, adopted the public confidence argument while upholding the charge of contempt. In 1997, however, the European Court re-adjusted the balance in favour of freedom of expression in the case of De Haes & Gijsels v. Belgium. In this case, De Haes and Gijsels had published articles accusing four Belgian judges of bias and had been prosecuted for contempt in Belgian courts. In this case the European Cou rt ruled that "although Mr. De Haes' and Mr. Gijsels' comments were without doubt severely critical, they nevertheless appeared to be proportionate to the stir and indignation caused by the matters alleged in their articles. As to the journalists' polemi cal and even aggressive tone, which the court should not be taken to approve, it must be remembered that Article 10 protects not only the substance of the ideas or information expressed but also the form in which they are conveyed."
It is imperative that the raison d'etre for retaining the offence of scandalising the court be re-examined. It may be necessary to review how public confidence in the judiciary has fared outside the Commonwealth and in Europe. The U.S., where cour ts long abandoned traditional caveats to free speech, is a strong candidate for such comparative appraisal. The U.S. Supreme Court's views are eloquently expressed in the words of Justice Black who wrote for the majority in 1941: "The assumption that res pect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all publ ic institutions. And 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."
History has proved Justice Black right. Also, the way forward may well lie within the words of Justice Amua Sekyi who reasoned that "the courts must have regard to the right of every person to express himself freely and openly on all matters of public co ncern whether pertaining to the actions of the executive, the legislature or the judiciary."
Zahid F. Ebrahim is an advocate of the High Courts in Pakistan, and a faculty member of the S.M. Law College at Karachi University. This is an edited version of an article written for Interights and Article 19's Joint Litigation Project on Freedom of Expression.