Thursday, December 11, 2014

Analysis of the contempt judgement 7: 'Swinish whites-skinned judges', “Pigs”, and “judicial scumbags

This is seventh in a series of articles analyzing the Tribunal's contempt judgement involving three articles in this blog. The full judgement can be accessed here

To see the index to the series of articles analysing the contempt judgement go here

It should be noted, at para 44 of this judgement, the Tribunal explicitly states that 'We always welcome post-verdict criticism',  and and at para 73, 'We of course do not disagree that even post judgment criticisms is permissible.' So I make these comments in that context.

This article is concerned with a section of the judgement dealing with contempt law

1. The Judgement starts of by referring to a paper written in 2011 by ATH Smith for the New Zealand law commission, and states:
The rationale for an offence of scandalising the court derives from the need to uphold public confidence in the administration of justice. In many ways, this need is particularly acute in a democracy, where the power and legitimacy of the judicial branch of government derives from the willingness of the people to be subject to the rule of law. In consequence, the public must have faith in the judicial system.
However the Judgement does not refer to what Smith says a little later in the report where he suggests an abolition of the category of the offence relevant here, the 'scandalising the court', and where he makes the following comments:

3.72 Probably the strongest argument against the existence of the offence of scandalising  is that it appears to be self-serving, and appears to permit the judicial system to be  both judge and plaintiff in its own cause. Even when the members of a court who decide upon an application for contempt are not those who are the targets of the contempt, the proceedings still appear to give rise to the appearance of the judges acting in their own cause. A slight variant upon this argument is that it vests a power in the judiciary to silence criticism of themselves.

3.73. There are other difficulties that might be identified. To bring contempt proceedings simply draws attention to the allegations and makes them more widely known than they would be otherwise. Indeed, the mere fact of responding to such allegations, and characterising them as a “real risk” might be seen as lending such allegations an air of credibility.

3.74. Where the material complained of is no more than scurrilous abuse, the public are unlikely to credit the allegations, in which case there is a real doubt as to whether or not the confidence of the public is undermined. A counter-argument is that in such circumstances the allegation of contempt will not have been made out and it is in any event rare for the allegation to consist purely of scurrilous abuse. 
In addition the judgement does not refer to the final consultation document published by the same Law Commission in 2014 which recomends in relation to contempt for 'scandalising the court' that the offence should be abolished.
The Commission’s preliminary view is that retention of the common law offence of scandalising is untenable in light of the freedom of expression issues ..., the rule of law concerns ...., and the views of modern New Zealand society. (para 6.62)
The consultation document also points out that the law has been abolished in the UK, that the offence does not exist in the United States and that a prosecution for the offence is unlikely ever to succeed in Canada (though the law does continue to exist in Australia). (see paras 6.38 to 6.57)

2. The Tribunal mentions at para 87 of its judgement that the 'The doctrine of “scandalizing the court” is rooted in English common law.' However the judgement does not mention - although this was mentioned to the court in arguments - that the offence has now been abolished in England and Wales by Section 33(1) of the Crime and Courts Act, 2013

3. The Judgement refers to only a single judgement where negative 'words' have been considered contempt of court. It states:
In a recent case in Hong Kong, [Secretary for Justice v. Oriental Press Group Ltd. [1998] 2 HKC 627] a newspaper which attacked the local judiciary by, among other things, describing judges as “swinish whites-skinned judges”, “pigs”, and “judicial scumbags and evil remnants of the British Hong Kong government” was found in contempt of court in part because the comments were “scurrilous abuse” [93 Ibid. p. 666].
There are no words in the three articles before the Tribunal, which come anywhere close to those in this particular Hong Kong case where judges are described as “swinish whites-skinned judges”, “pigs”, and “judicial scumbags and evil remnants of the British Hong Kong government". It is therefore unclear how the Hong Kong case can  act as a precedent for the Tribunal to describe any wording in the three blog articles scandalous.

Moreover, this Hong Kong case seems to show how high the bar has been set before assessing particular words as contemptuous.

4. In this context, the Judgement does not refer to the cases, that were set out in arguments before the tribunal,  involving particular statements (two of which related to Sheikh Hasina) made in other articles that were not considered by courts to be in contempt

Wording in others articles which was not considered contemptuous by another court are:
- 'blindness of judges',
- the 'unrealistic, contradictory and, in the leading case, erroneous, decisions of the courts',
- 'Everyone, it seems, is out of step, except the courts'
- '[courts should remember that] silence is an option',
- 'We must teach [the judge] a lesson, in this country, and expose him for what he is'
- 'The [judge's] report is being used to destroy me',
- 'the Supreme Court [is] composed of the element from the elite class had their unconcealed sympathy for the haves', and
- 'the court is as if a safe shelter for the corrupt of accused persons' and 'the court who grants bail should be held responsible.'
It should be noted also that the High Court stated in relation to the final comment by Sheikh Hasina that
The statements are no doubt critical , in general, of the court ...  The statements are also not accurate, factually …. But the statements based on inaccurate assessments of situation, however gross misleading those may be, cannot be tantamount to be contempt of court. 
This is what was written in the submissions to the court - not referred to in the Tribunal judgment.
"That in considering whether the articles of the contemner or any of the contents therein constitute contempt, the contemner refers to the following instances of writings which were not considered to be in contempt, but rather as falling within the parameters of fair criticism or at least permissible criticism:

(a) In the 1968 case of Ex parte Blackburn, [1968] 2 W.L.R. 1204, the relevant passage in the article (written by Mr. Quentin Hogg QC, who was an Member of Parliament at the time, and who later became the Lord Chancellor of the United Kingdom), which was not considered to be in contempt, is quoted below:
“The recent judgment of the Court of Appeal is a strange example of the blindness which sometimes descends on the best of judges. The legislation of 1960 and thereafter has been rendered virtually unworkable by the unrealistic, contradictory and, in the leading case, erroneous, decisions of the courts, including the Court of Appeal. So what do they do? Apologise for the expense and trouble they have put the police to? Not a bit of it. Lambaste the police for not enforcing the law which they themselves had rendered unworkable and which is now the subject of a Bill, the manifest purpose of which is to alter it. Pronounce an impending dies irae on a series of parties not before them, whose crime it has been to take advantage of the weaknesses in the decisions of their own court. Criticise the lawyers, who have advised their clients. Blame Parliament for passing Acts which they have interpreted so strangely. Everyone, it seems, is out of step, except the courts. . . The House of Lords overruled the Court of Appeal . . . It is to be hoped that the courts will remember the golden rule for judges in the matter of obiter dicta. Silence is always an option."
(b) In the 1983 Privy Council case of Badry v DPP of Mauritius 1983 2 AC 297, the following two statements were deemed not to be in contempt (M. Glover being the Judge concerned):
“When the children of the coolies take their revenge is it M. Glover who is going to run this country? We must teach him a lesson, in this country, and expose him for what he is.'

“The Glover report is being used to destroy me - it is not everything he said that is true - there are a lot of things he has not taken into consideration.”
(c) In the 1998 Indian Supreme Court case of PN Duda vs P. Shiv Shanker (AIR 1988 SC 1208), the court set out the relevant portion of the speech which was not considered contempt: - para 3 and 4
“The relevant portions of the said speech for the present purpose are as follows: "(a) The Supreme Court composed of the element from the elite class had their unconcealed sympathy for the haves i.e. the Zamindars. As a result, they interpreted the word 'compensation' in Article 31 contrary to the spirit and the intendment of the Constitution and ruled the compensation must represent the price which a willing seller is prepared to accept from a willing buyer The entire programme of Zamindari abolition suffered a setback. The Constitution had to be amended by the 1st, 14th and 17th Amendments to remove this oligarchic approach of the Supreme Court with little or no help. Ultimately, this rigid reactionary and traditional outlook of property, led to the abolition of property as a fundamental right."
The court made the following observations regarding the above speech:
“Bearing in mind the trend in the law of contempt as noticed before … the speech of the Minister read in its proper perspective, did not bring the administration of justice into disrepute or impair administration of justice. In some portions of the speech the language used could have been avoided by the Minister having the background of being a former Judge of the High Court. The Minister perhaps could have achieved his purpose by making his language mild but his facts deadly. With these observations, it must be held that there was no imminent danger of interference with the administration of justice, nor of bringing an institution into disrepute. In that view it must be held that the Minister was not guilty of contempt of this Court.”
(d) In the Habibul Islam Bhuiyan v Sheikh Hasina (51 DLR(AD) 68 (1999)), para 5 the Hon’ble Appellate Division summarised what was in news reports publishing the Hon’ble Prime Minister’s speech in the following way:
“What appears to be the common feature however is that the Prime Minister allegedly said that in 2 days (25 and 26 Aug 1998) the High Court allegedly said that the High Court (apparently she meant a Bench of the High Court Division) had granted bail in 1200 cases and when the attention of the Chief Justice was drawn to it, he only changed the Bench but did not take any other step; had he taken step, people would not have any doubt about the judiciary.”
The Hon’ble Appellate Division said that it was not correct that there had been 1200 cases – in that there were 155 bails and 367 ad interim bails in the two Benches of the Hon’ble High Court Division. The Hon’ble Appellate Division also said that the constitution of the Bench concerned was changed by the Hon’ble Chief Justice long before the issue of granting bail came to be discussed in the press, though the remarks of the Hon’ble Prime Minister gives the impression that the constitution of the Bench was changed at the instance of the Government, which was not correct.
(e) In Mainul Hosein v Sheikh Hasina Wazed 53 DLR 139 (2001), the Hon’ble Prime Minister’s statements was summarized by the High Court Division in the following way at para 48
“She remarked that in a country where the killers get patronization the killers are defended, the killers are not put to trial, the killing would continue. The police apprehend the accused, the High Court, lower courts, enlarge them on bail. High Court or lower courts wherever they go, the court is as if a safe shelter for the corrupt of accused persons. The lawyer who wants bail should be held responsible or the court who grants bail should be held responsible. So long as it could not be done, … it would be difficult task to improve the situation till then.”
The court went onto say at para 49 that:
“ … The statements are no doubt critical , in general, of the court and also of lawyers. The statements are also not accurate, factually. In matters of bail, the weaknesses in the process of investigation by the police, failure of the law officers appearing for the prosecution and the loopholes in the judgment delivery systems …. But the statements based on inaccurate assessments of situation, however gross misleading those may be, cannot be tantamount to be contempt of court. Moreover, in the absence of mens rea no contempt is established.”
 It is respectfully submitted that if the publications and utterances referred to above are not considered contumacious, the statements made by the contemner, which are much more restrained in character, cannot be regarded as being contumacious.

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