A few weeks ago the Judicial Council of Nepal agreed standards for the appointment of judges. Reportedly it recommended a provision that any lawyer implicated in contempt of court should be disqualified from becoming a judge. The case certainly exposes the tensions between freedom of speech and the administration of justice. What does contempt actually amount to in our context? A serious question must be asked: does this provision not automatically restrict the freedom of speech of lawyers and at the same time grant the judiciary arbitrary power? Does this one-sided and biased decision of the Judicial Council not amount a mockery of fair justice?
Freedom of expression is supported by a web of interrelated values. There is democracy itself and the individual’s need to express and explore ideas, to learn and think about a wide range of topics, and to be associated with other people who have common interests. Striking an appropriate balance between the protection of reputation and the preservation of free speech has always been a key challenge for the law of defamation. To what extent should the law of contempt be allowed to restrict further the freedom of expression? Are people not entitled to ask what system of justice prevails and how society is to function within it?
Contempt of court is intended to serve the primary function of protecting the integrity of court proceedings. The law of contempt essentially concerns interference with the administration of justice. There is a significant tension between freedom of expression and the administration of justice because of a high public interest in maintaining and protecting both principles. This calls for a deep analysis of the subject in our context. However, do fair criticism of judges and the judicial process really undermine confidence in the judiciary? Can judges be scandalised?
There is no rule relating to the precise circumstances in which the administration of justice is or can be brought into contempt. The judgments are strewn with pious platitudes offering little guidance to editors, commentators, lawyers, and members of the public. Consequently, this part of the law of contempt, even though necessary, is a threat to free expression. In principle contempt of court is a court order, which in the context of a court trial or hearing declares a person or organization to have disobeyed or been disrespectful of the court's authority. Such a finding may be the result of failing to comply with a lawful order of the court, of showing disrespect to the judge, of disrupting court proceedings through poor behaviour, or of publishing material considered likely to jeopardize a fair trial.
In a democracy the basic principle is that the people are supreme. It follows that all authorities, including judges, legislators, ministers, and bureaucrats, are servants of the people. In a democracy, therefore, the people are entitled to as much information as possible about the operation of the organs of state. This applies as much to the judiciary as to the executive or legislative branches of government.
In an Australian case, Attorney-General for NSW vs. Mundey, the court noted that the actions of courts could be as trenchantly criticized as any actions by public institutions including parliament. Public institutions in a free society, it noted, have to survive on their own merits: there can be no question of propping them up if their conduct does not command the respect and confidence of the community. If their conduct does, however, justify such respect and confidence they do not need special rules to protect them from criticism. Lord Denning in R vs. Commissioner of Police stated: ‘Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We 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. The task of the court is to balance the public interest in freedom of expression against the need to maintain the autonomy of the judiciary.’
Lord Atkin put it this way: ‘Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and the respectful and outspoken comments of ordinary men.’
What of Nepal?
Lawyers are courts’ helpers. Are not healthy relations between courts and the lawyers always vital to the conduct of justice with fairness? Is the decision of the Judicial Council not marred by evil intent? Will it not bar lawyers and others from making fair and constructive criticism of the justice system? The truth must be strongly defended if such criticisms are for the public benefit and in the public interest. The role of the court must be to defend both the freedom of expression and the fair administration of justice. The courts and lawyers must work in collaboration to ensure that the highest professional standards are maintained. At the same time press freedom and the right to freedom of expression must not be abused by individuals in order to undermine the fairness of the justice system.
Freedom of expression has long been held to be the cornerstone of a democratic society. To make the judicial process clean, unbiased and effective, to promote the people’s faith in the judiciary, and to control acts undermining the prestige of the judiciary, the ancient law that prohibits criticism of a judge and the judicial process needs to be abolished. Fair criticism of judges and of judicial decisions is not only a clear right but there are occasions when it might become a duty. Stephen Wooler once noted that ‘times have changed, as clearly have judicial attitudes. Judges now expect more public scrutiny of their work. It’s only in the most extreme cases that one would expect to resort to the doctrine of scandalising the court’.
Contempt of Court is strictly a power aimed only at enabling the court to function. It is not to prevent people from criticizing the judges if the latter do not function properly or are guilty of misconduct. The authority of the court is derived from the public’s confidence in it, and this in turn results from the judges’ own conduct, integrity, impartiality and learning. Under a proper functioning democratic system it is the people who are supreme: they are the superior entity, while state authorities (including judges) are inferior entities, being merely servants of the people.
The best protection for a judge has to be his reputation for integrity, impartiality, and learning. A reputable judge will hardly ever need to use the contempt power in his judicial career. Only rarely and in extreme cases should this power need to be exercised, and then merely to enable the judge to function, not to preserve his dignity. In a democracy criticism by the few will neither bring a judge into disrepute nor shake his authority: it is his own conduct (or rather misconduct) that can do that. If a judge is honest and upright (and people can assess his integrity very quickly) no amount of misguided and baseless criticism will bring him into disrepute or shake his authority, for such authority comes from the confidence that the public at large has in him.
The republican and democratic character of our Constitution demonstrates that all power ultimately stems from the people. Should the Judicial Council not rethink its decision to prevent any lawyer becoming a judge if he can be shown to have been implicated in contempt? Where is the right of lawyers to make fair and constructive criticism of the judicial process? In a liberal society is it fair to accept judicial tyranny veiled as so called ‘contempt’? What are the chances of the court in future misusing its power under this provision? Before this matter is allowed to rest we need to explore every aspect of contempt so that the criteria adopted may reflect the changed social and political aspirations of our country. The debate must start now.