Friday, June 20, 2008

Judging those who judge the judiciary

Chee Soon Juan's strenuous and persistent questioning of witnesses whilst the court had disallowed those questions gave rise to a contempt conviction.
Gopalan Nair's vitriolic verbal assualt making reference to the judge who presided over the case has resulted in a charge under the Penal Code of insulting a public officer. Both of these cases give rise to the fact that there is an interest in protecting the integrity of the judicial system and an opposing public interest in being able to engage in free criticism of the judiciary and to subject them to scrutiny.

Here are some interesting quotes about insults leveled against the judiciary or contempt of court generally. It is quite a task to balance the need for an unimpugned judicial system as a cornerstone of constitutional governance and the need for free expression and free speech so that a little boy can still cry out that the emperor wears no clothes.

In Re S.Mulgaokar(1978) 3 SCC 339.
“The contempt power, though jurisdictionally large, is discretionary in its unsheathed exercise. Every commission of contempt need not erupt in indignant committal or demand punishment, because Judges are judicious, their valour non-violent and their wisdom goes into action when played upon by a volley of values, the least of which is personal protection – for a wide discretion, range of circumspection and rainbow or public considerations benignantly guide that power” - Justice Krishna Iyer

Ambard v. Attorney General for Triandad and Tobago, 1936 AC 322.
"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 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 respectful, even though outspoken comments of ordinary men." – Lord Atkin

In Re S.Mulgaokar(1978) 3 SCC 339.
“A vague and wandering jurisdiction with uncertain frontiers, a sensitive and suspect power to punish vested in the prosecutor, a law which makes it a crime to public regardless of truth and public good and permits a process of brevi manu conviction, may unwittingly trench upon civil liberties and so the special jurisdiction and jurisprudence bearing on contempt power must be delineated with deliberation and operated with serious circumspection by the higher judicial echelons. So it is that as the palladium of our freedoms, the Supreme Court and the High Courts, must vigilantly protect free speech even against judicial umbrage – a delicate but sacred duty whose discharge demands tolerance and detachment of a higher order”. – Justice Krishna Iyer

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