A  judge has accused senior judges – past and present – of judicial  improprieties.

A Royal Commission is about to be established.

A case is pending in court.

The public has been agog.  Social media comments abound.

In all this, what happens if a person says the wrong thing?

How far can a citizen go?

Could he be punished for contempt of court?

Scandalising the Court by words or publications

Generally, publications which bring ‘the judge into contempt, or lower his authority’ are said to be a ‘contempt of court’.¹R v. Gray [1900] 2QB 36 and 40, per Lord Russell CJ

This particular area of law is called ‘scandalising the court’.

In Malaysia, the law of criminal contempt is a common law offence.

To be guilty of criminal contempt, the accused must have acted in a way that ‘interferes with’ or ‘impedes the administration of justice’.²AG v. Times newspapers Ltd [1991] 2 All ER 398 HL; Dobson v. Hastings [1992] Ch 394  That has nothing to do with ‘offending a court’, or ‘protecting its dignity’.³Johnson v. Grant, [1923] SC 789 at 790.

Some examples will make it clear.

Comments of a Member of Parliament

Perera was an  MP in Sri Lanka.  As part of his duties, he visited the Remand Prison at Colombo. He received a complaint from several prisoners.  They said that when their appeals against conviction were being heard, “they had not been present in court”. He asked a prison jailor, who confirmed it. This was not entirely correct. Relying on the inaccurate information, he made a remark in the prison’s Visitors’ Book.

He said,

“[The] present practice of appeals of remand prisoners being heard in their absence is not healthy. Whether represented by counsel or otherwise, the prisoner should be present at proceedings”.

He was held to be in contempt.⁴Arthur Reginald Perera v the King [1951] AC 482

On appeal, the Privy Council said Perera had acted in good faith and in discharge of what he believed to be his duty as an MP.  His criticism was an honest one on a matter of public importance. His conduct had not  ‘lowered the authority’ of any court or judge.⁵Ibid, page 488

Ambard’s criticism of disparate sentences

Port of Spain is the capital of Trinidad and Tobago.

In June 1934 one Joseph St. Clair was charged at the Sessions Court.

The accused had fired his rifle at his superior officer but had missed.

He was charged with shooting with ‘intent to do grievous bodily harm’.

Found guilty, he was sentenced to 8 years’ imprisonment.

At another court, another accused, one John Sherriff, was also charged.

He had intended to attack a particular woman. Mistaking another for his target, he did attack, and seriously mutilate a lady.  He was convicted on a similar charge as St. Clair, and was sentenced to 7 years’ imprisonment.

Ambard was the editor of a newspaper, ‘Port of Spain Gazette’. The paper criticised this apparent disparity of sentence.

Ambard was charged with contempt of court.  The Chief Justice said the article had been written with the ‘direct object of bringing the administration of criminal law into disfavour with the public’’. Ambard was fined £25.

The Chief Justice said,

“While the judges would place no obstruction in the way of fair criticism of their performance of their functions, untruths and malice would not be tolerated”.⁶ Ambard vs Attorney General for Trinidad and Tobago [1936] AC 322, at p. 334

On appeal, the Privy Council found no such evidence.⁷Ibid, p.334 It held that Ambard was perfectly justified ‘in pointing out what was obvious’.⁸Ibid page 336   It said statements made in the public interest fell outside the law of contempt.

Lord Atkin observed that committals for contempt of court ‘[by] scandalising the courts ‘had become obsolete in [the United Kingdom]’.⁹He quoted Lord Morris in McLeod v St Aubyn [1899] AC 549  Yet this had been disproved the very next year in another case.¹⁰Ibid, Lord Atkin

Atkin said, ‘Judges and Courts are alike open to criticism, and if a reasonable argument… is offered against any judicial act as [being] contrary to … the public good, no court … would treat that as contempt of court.”¹¹He cited Lord Hardwicke LC in Re Read and Huggonson [1742] 280K p. 469

He said the public could criticise judges provided such detractors “[abstain] from imputing improper motives [upon judges], and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice”.

If critics came within that protective circle, they were ‘immune.’

In all this, Lord Atkin said something that shines through the years:

“Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.

Some writers have, in fact, escaped the clutches of contempt.

‘The Blindness of Judges’

A particularly difficult case, concerning gaming legislation, came before the English Court of Appeal.¹²Sec. 32 of the Betting, Gaming and Lotteries Act 1963  Under that law, if, in a game, the chances were not equally favourable to all players, it was unlawful – here it concerned roulette. The common law of England had always condemned gaming houses.¹³“All common gaming houses are nuisances in the eye of the law; not only because they are great temptations to idleness, but because they are apt to draw together great numbers of disorderly persons, which cannot but be very inconvenient to the neighbourhood.” Hawkins, Pleas of The Crown (Book I, Ch 75, sect 6)

Successive statutes enacted to stop the evils of gaming produced no lasting result,¹⁴R v Police Commissioner of The Metropolis Ex parte Blackburn [1968] 1 All ER 763 because “the gamblers were too quick-witted for the law to catch them”.¹⁵Blackstone: “The invention of sharpers being swifter than the punishment of the law which only hunts them from one device to another … “

Because of the difficulty in prosecuting gaming houses, and due to uncertainties in the law, the police were instructed not to prosecute gambling clubs – unless there were complaints of cheating or if the clubs had become the haunts of criminals.

Blackburn, a public do-gooder, sued the Police Commissioner, and demanded that the Police prosecute several London clubs.

Deploring the state of the law, Lord Denning blamed lawyers for making the law more complex, parliamentary draftsmen for creating uncertainties, and gaming houses for taking advantage of them. The Court ordered the police to enforce the law.

When its decision was promptly overturned by the House of Lords, one Mr. Quentin Hogg wrote an article.  It was in ‘Punch’, a magazine of ‘humour and satire’.¹⁶It ran from 1841 until its closure in 2002 It has been described as ‘A very British institution with an international reputation for its witty and irreverent take on the world’.¹⁷http://www.darvillsrareprints.com/Punch%20People.htm

In it, Mr. Hogg said,

“[The] recent judgement 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 pubic to? Not a bit of it.”

The author went on to say that the Court of Appeal had,

“[Criticised] the lawyers, and blamed Parliament for passing Acts which they have interpreted so strangely.”¹⁸Ibid p.320

The author continued:

“[Everyone], it seems, is out of step, except of course the court. 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”.

Hogg was asking the judges, especially Denning, ‘to put up or shut up’.

Accepting that the article was “certainly critical of this court,” Lord Denning observed, “… insofar as it referred to the Court of Appeal, it is admittedly erroneous.”

Yet, he refused to hold Hogg in contempt.¹⁹R v. Metropolitan Police Commissioner ex parte Blackburn [No.2][1968] 2 QB 150 CA

Now let us look at some statements that stung the courts into action.

An ex-Minister’s comment against the Courts

Badry had been a minister in the Government of Mauritius.  During his ministerial stint, he had been accused of fraud and corruption.  The government appointed a judge of the Supreme Court of Mauritius as the sole Commissioner.  He was empowered to enquire into these allegations.  In 1979 the judge produced a report that reflected poorly on Badry.

In a political speech in May of 1980, Badry criticised the system of justice in Mauritius.  He said,

“Injustice and corruption prevail in the legal system”.

For good measure, he added:

“Wealthy persons receive preferential treatment in the Supreme Court of Mauritius”.

Two other passages contained scandalous statements about the judge.

The Privy Council thought these were,

“… likely to impair public confidence in the honesty and impartiality of the courts in general, and the judge in particular”.

Badry was punished for contempt.

The Privy Council found that,

“… the grave and unwarranted accusations which Badry chose to level at the Supreme Court were clearly meant to shake public confidence in the administration of justice in Mauritius”.²⁰Badry v. Director of Public Prosecutions of Mauritius [1983] 2 AC 297

Those convictions were upheld.

Two lawyers speak against the Malaysian Supreme Court

In a case in Penang, the trustees of a Kongsi (a Chinese association) were owners of certain lands. More than 500 farmers occupied it.  In 1979, the owners entered into an agreement with certain developers. The agreement allowed the developers to enter into the land to ‘carry out site preparation work’, and to ‘evict squatters’.

In October 1982, some 30 to 40 workers of the developers came onto the lands.  They brought two bulldozers. The vegetable plots and sprinkler system were destroyed. The dispute went to court.

The High Court judge felt that the developers’ workers ‘had trespassed onto the land’. He ordered the owners and developers to pay the farmers RM150,000.00 for trespassing; RM42,000 for the loss of the sprinkler system, and RM135,000.00 for the loss of vegetable produce.

On appeal, the Supreme Court disagreed that there had been any trespass.²¹Trustees of Leong San Thong Khoo Kongsi (Penang) Registered & Ors v. Poh Swee Siang [1987] 611

One of the arguments centered on the point that a landowner – who wished to throw out a tenant whose tenancy had expired – had to first get a court order. Until then he could do nothing. Malaysian law on this was based on an identically-worded statute in India.²²Sections 7 and 8, Specific Relief Act 1950

The Supreme Court declined to follow the decisions of the Indian Supreme Court. This was because of the old English concept of ‘Self-Help’: a landowner could, using reasonable force, enter into his land, and evict overstaying tenants.²³Halsburys Laws of England (Paragraph 1400, Volume 45, 4th Edition)  Consequently the court reduced the compensation to the farmers.

Several individuals, including two lawyers – SM Mohideen and Meenakshi Raman – remarked about it during political speeches. Contempt proceedings were brought against them.²⁴Trustees of Leong San Tong Khoo Kongsi (Penang) Registered & Ors v. SM Idris and Another Application [1990] 2 MLJ 273

These words (highlighted) must have irked the judges no small amount.

The Supreme Court found no evidence of contempt against most of the other accused persons.  But it focussed on the two lawyers, saying,

“The position of … Mohideen Abdul Kader and Miss Meenakshi Raman, in the second application, are different. They are both advocates and solicitors and should know the law.“[Ibid].

Idris had said,

“Tak tahu apa pasal kita ada court? Tak tahu apa pasal kita bayar gaji kasi hakim-hakim.

Ini Parliament bikin punya undang-undang. India pun ada itu macam punya undang-undang. India punya court banyak tinggi punya court. Itu Supreme Court. Dia cakap itu tuan tanah, dia mesti mahu pergi mahkamah, mahu dapat keluar itu perintah, baru boleh kasi keluar semua itu orang sewa.

Tapi kita punya hakim tiga orang, banyak pandai punya orang, dia tak mahu ikut. Dia tak mahu itu cara.”

The inferences were that the Supreme Court judges were prejudiced, were not gainfully employed, had not discharged their duties, and were irresponsible. The Judges observed that:

“[the suggestion was] that our judges lack maturity, are inferior, incapable, and have not kept up with the best standards of the judges of the Indian Supreme Court”.²⁵Ibid, p. 276

Meenakshi had also issued a statement in Bahasa Malaysia, which said:

“[Ini] undang-undang banyak bodoh punya undang-undang. Bukan sahaja dia bodoh, dia tak adil.  Ini hakim ada cakap … tuan tanah tak payah ikut law. Dia cakap itu boleh pergi tempat kasi ini orang keluar, dia cakap tak payah ikut law…

Jadi kita yang jadi lawyer, kita pun ingat apa kita belajar undang-undang? Buat apa kita mahu hakim-hakim yang dia orang kata pandai-pandai. Tapi dia pandai-pandai macam ini bikin undang-undang bodoh-bodoh.”

The inference here had been that “the Supreme Court decision was stupid… that the Supreme Court judges advocate lawlessness… are reckless and irresponsible”.²⁶Ibid

Counsel defending the accused, Gurdial Nijar, argued that these remarks were made in the interest of the public; and thus protected the lawyers from the clutches of contempt. He contended that there was a difference between ‘abusing judges’ and ‘criticising judges in good faith’. He said the court,

“… should have the magnanimity to excuse intemperate language”.

The Supreme Court said,

“As advocates and solicitors [the lawyers] are both officers of the court and are expected to uphold the dignity of the court and the respect for the judges. But they have ridiculed the Supreme Court. … The blatant insinuations made by them had scandalised the Supreme Court and brought it into disrepute”.

The court imposed a fine of RM5,000.00 or in default three months’ imprisonment.²⁷Following an older case in AG & Ors v Arthur Lee Meng Kuang [1987] 1 MLJ 206

Two important points – Is the protection afforded to lawyers weakened since 1987?

Two points are important about this case.  The case seems to have gone against English jurists’ view that the offence of scandalising the court is ‘virtually obsolescent’.²⁸Secretary of State for Defence v. Guardian Newspaper Ltd [1985] AC 339, at 347; and also McLeod v St Aubyn [1899] AC 549

Second, a long line of cases have demonstrated that ‘the courts are reluctant to punish advocates for contempt’.²⁹Halburys Laws, Volume 22, p.11, paragraph 15

The Kongsi case seems to suggest that a lawyer’s criticism of the courts carries a greater sting – and this view is not free from difficulty. A legal practitioner neither enjoys any greater protection in law; nor merits any more severe punishment than any other person. Under the Federal Constitution all persons are equal, and enjoy the equal protection of the law: [Article 8].

What can we learn from these cases?

It is quite all right to make strong remarks against judges or the legal system.  Yet such comments must be made in good faith, in the public interest. The words employed must be fair and temperate.³⁰R v. Metropolitan Police Commissioner ex parte Blackburn [No.2][1968] 2 QB 150 CA; and AR Perera v King [1951] AC 482 Offensive comments against a judge’s person and character can be punished.

It has been a long-held convention that judges do not talk back.  In the ‘best interest of the Rule of Law’ judges do not make public remarks, and thereby fall into the danger of descending into the public arena.

In this who can forget the words of Lord Denning or that of Lord Salmon in the Punch case?

Denning said,

“Let me say at once that we have never used [the contempt] jurisdiction … to uphold our own dignity. Nor will we use it to suppress those who speak against us.”

He did entreat for respite against judges, saying,

“All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to the criticisms. We cannot enter into public controversy. Still less into political controversy.

We must rely on our conduct itself to be its own vindication.

Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I add, from saying what the occasion requires, provided that it is pertinent to the matter in hand.

Silence is not an option when things are ill done.

So it comes to this.

Mr. Quintin Hogg has criticised the court, but in doing so he is exercising his undoubted right.… We must uphold his right to the utmost”.

Lord Salmon said:

“[The] authority and reputation of our courts are not so frail that the judgements need to be shielded from critics”.

The court’s duty to uphold freedom of speech – particularly when the target of attack was the court itself – was emphasised by Lord Salmon in these words:

”It is the inalienable right of everyone to comment fairly on any matter of public importance. This right is one of the pillars of individual liberty – freedom of speech, which our courts have always unfailingly upheld.

“[No] criticism of a judgement, however vigorous, can amount to contempt of court, provided it keeps within the limits of reasonable courtesy and good faith. The criticism complained of, however rumbustious, however wide off the mark, whether expressed in good taste or in bad taste, seems to me to be well within those limits”.

Finally, the words of Lord Denning bear recall:

“We [Judges] do not fear criticism, nor do we resent it.  For there is something far more important at stake. It is no less than freedom of speech itself…”

So what happens to these lawyers charged for contempt?

That depends on how the courts interpret the words they have used – and importantly – their intent.

We shall have to wait and see.