Criticising the judiciary

The recent Malaysiakini contempt prosecution case by the attorney-general has brought realisation that you can be made criminally liable for criticising the judiciary.

Recall that Malaysiakini’s editor-in-chief was set free, but the portal was fined a hefty RM500,000 for carrying subscribers’ comments, which by any account were scurrilous.

The comments comprised accusing the chief justice of corruption, alleging that “the judicial system is completely broken”, and asking for its “defunding”.

The alleged “crime”: the contempt of “scandalising the judiciary”.

Essentially, it means bringing the institution of the judiciary into disrepute, thus undermining the administration of justice. An offence created by the common law.

The court has complete discretion to impose any period of imprisonment or any quantum of fine.

In the UK, this contempt was abolished in 2012. Generally, the stance of the UK courts before then was that freedom of speech trumps any act of scandalising the judiciary.

As was spoken by Lord Denning: “There is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man ... to make fair comment, even outspoken comment, on matters of public interest.”

But the offence remains alive and active in most parts of the Commonwealth, as attested to by a formidable quantity and quality of judicial court decisions.

Any attack on the moral authority of the judiciary, they say, will undermine public confidence in this institution.

A plethora of cases – in courts stretching from Mauritius, New Zealand, Australia, Canada, Hong Kong, India, Zimbabwe, South Africa to Singapore – establish three main principles.

First, that judges like other public servants are subject to criticism. On the basis that free speech must be preserved as a core value of a free society.

Second, there are limits to this freedom. It is unlawful to insult the judiciary with scurrilous abuse, or to allege bad faith or a lack of impartiality, at least where there is no basis for such criticism.

Third, it is not to protect the dignity of the individual judge but to maintain public confidence in the administration of justice.

The arguments have a common thread. A need to preserve public trust in the judiciary (South African Constitutional Court), ensuring that public confidence is not shaken by baseless attacks on the integrity or impartiality of courts or judges given the importance of such confidence to the stability of society (Australian Chief Justice; New Zealand Court of Appeal.)

Even the European Court of Human Rights upholds recourse to the criminal law to protect courts from unfounded attacks by way of insults or allegation of bias in order to maintain public confidence that judges need to be able to perform their function of upholding justice under the rule of law.

Does this offence reconcile with the right to free speech?

Yes, said India’s Supreme Court, while the court should avoid being over-sensitive, ruled Chief Justice Anand, “vulgar debunking cannot be permitted to pollute the stream of justice”.

Abolitionists of the offence argue that charging for contempt, ironically, does not serve the judiciary well as it then invites public odium against any such conviction, as perhaps may have been the fallout following the Malaysiakini Federal Court decision.

Let sleeping dogs lie. As invariably happens, time will banish into oblivion any disparaging comments. Let the judiciary’s conduct speak for its integrity.

In the colourful words of the chief architect of the abolition move in the UK, Lord Pannick QC: “Is the judiciary such a delicate flower that it alone amongst public institutions needs protection from criticism and cannot maintain its reputation by public perception of how it actually performs its functions?”

Following the Malaysiakini conviction, the Bar Council proposed the abolition of the offence, citing in support its abolition in the UK.

Federal Court Justice Nallini provides a rejoinder for the offence to remain.

The judiciary relies on its moral authority to carry out its function of acting as a check and balance against the other arms of the government, and of defending the peoples’ rights under the Constitution.

Consequently, “acts calculated to destroy or grind down this moral authority and thereby destroy public confidence in the institution need to be arrested. Else this will inevitably result in an erosion of the rule of law”, exacerbated by the fact that the judiciary does not engage publicly with scurrilous attacks against it.

Only unfounded and scurrilous attacks constitute the gravamen of the offence.

Other criticisms are not precluded, declared Federal Court Justice Rohana Yusuf, speaking for the Federal Court, echoing perhaps Lord Atkin’s: “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even outspoken, comments of ordinary men.”

So, while the existential issue of this particular contempt continues, it may be suggested that the offence ought not to extend to comments on matters of public interest, even if rendered in somewhat intemperate language.

In particular, discourtesy should not be criminalised, as did the then Supreme Court in Trustees of Leong San Tong Khoo Kongsi v SM Idris and others (1999).

Finally, the scope for the conviction must be “narrow indeed if the right to freedom of expression is afforded its appropriate protection”: South African Court of Appeal (2001).

Gurdial, a former law professor, is the president of Hakam, the National Human Rights Society. Comments: