Monday, April 01, 2019

'Scandalizing the Court' a contempt that should be abolished in Malaysia? Freedom of expression and duty to highlight suspected wrongdoings/mistakes more important?

The contempt of scandalizing the court should be abolished in it has already been done in other jurisdictions like the United Kingdom..

This contempt seems to be also about comments, articles and publications that say judgments are wrong or maybe influenced by by external and other factors. It could be suggestions of corruption or even about 'orders' and 'directions' of others that could influence our judges - attacking the very essence of the 'independence' of the judiciary.

Contempt should maybe be limited to non-compliance with court orders, or even non-compliance with what a judge says a lawyer or another continuing to talk or creating a rucus in court affecting a judicial proceedings. 

Saying judges made a mistake is really what an appeal is all about. When I first appeared in a Court of Appeal hearing, one of the Appelate judge asked me whether I was saying that the learned Judge in the High Court had made a mistake...and, of course, my response was 'Yes'. That is why there are appeals...Likewise, many may take the position that the judge and/or courts made mistakes...or did wrong. That, my friend, is an opinion and people should always be FREE to express that opinion - this is freedom of speech. But, that is what makes it very disturbing about this case whereby our Attorney General has commenced contempt proceedings against a person(a lawyer) because of 2 articles he wrote.

WHY did the judge make a mistake? If there is suggestion of corruption, should not there be an investigation by the police, MACC or relevant bodies? If there is a suggestion that the judge was 'pressured', instructed or ordered to rule as it did, then should there be an investigation too to root out these other people who are interfering with the 'independence of the judiciary'..

What kind of 'pressure' could be placed on Malaysian judges?
- It could be simply 'money'...
- It could be a promise of elevation to become a Court of Appeal or Federal Court judge
- It could be a threat to transfer a judge to some town far from the capital - maybe to Kota Bharu or somewhere in Sarawak or Sabah?
- It could be a promise to extend his period of service ...our law allows the extension of tenure beyond retirement for Federal Court judges...another 6 months, or even for a few more years as happened to our immediate past Chief Justice..
- It could be a promise to get him/her appointed as some Commissioner or even Director after he/she retires..
- It could be also pressure exerted that somethings may be done to a member of the family(or not) - maybe a son being charged in court, a daughter investigated, etc..

To protect the INDEPENDENCE of the Judiciary, certain safeguards have been put in place ...their HIGH pay, Security of Tenure(judges cannot be retrenched or terminated until retirement), ...but the question is whether this is enough..maybe, it need be strengthened..

Today, in Malaysia, this seems to be the contempt of court, in the action initiated by the Attorney General against a lawyer, for things allegedly said in 2 article, entitled..

The alleged contempt, allegedly arises in 2 articles written by Arun Kasi, which were entitled:- 

“How a dissenting judgment sparked a major judicial crisis” dated Feb 16, 2019, and 

Tommy Thomas must look into arbitration centre that sparked judicial crisis” dated Feb 22, 2019.

* I still have not the opportunity of reading the 2 articles, and am not aware of the contempt of court details and basis as contained in the relevant applications - so points made are generally on the issue of scandalizing the court/judiciary contempt.
See earlier post:- 

Maybe not proper for Tommy Thomas to act for AG in this contempt proceedings Arun Kasi?

The question is:- 

* Can we write an article criticizing the judgment of the courts? Highlighting the mistakes in judgment? Or maybe even suggesting that something is amiss - possible corruption, threat, ...or even judgments as ordered by others, be it the Prime Minister, government, some other judges, or even a 'friend' of the judge..

* Can we highlight a possible wrongdoing asking(or suggesting) that the MACC or the police to investigate?

* Are judges and judgment beyond reproach or even suggestion of 'wrongdoing'?  

* What do we do if we suspect possible corruption or wrongdoing? Keep quite?

In Malaysia, we have history about highlighting concerns about the Judiciary... many of which could have resulted in 'scandalizing of the judiciary' contempt proceedings..
- 1988 Judicial Crisis
- Judges conduct and decision about certain cases - like the Anwar Ibrahim's case - much criticism about then Judge Augustine Paul
- Criticim also arise when a former Chief Justice immediately after retirement joined a law firm...(Well, here the Bar suggested a 'cooling off' period of 3 years after a judge resigns..
- The most recent episode is about the extension by contract for several years after RETIREMENT the immediate past Chief Justice and the President of the Court of Appeal - who also CONTINUED as the Heads of Judiciary...
- Judges holidaying with lawyers also was an issue..

In fact, most of these issues could have resulted in Contempt of Court proceeding for 'scandalizing the judges/judiciary'...against many different people in Malaysia - but it did not?

Hence, the question in my mind is WHY have the AG initiated contempt of court proceedings now...for possible 'scandalizing the judiciary'...Are judges, their judgments now beyond any criticism or suggestion of possible wrongdoing? It really is about cases, that really never got the 'spotlight' ...and many, even lawyers, were not really aware of these cases? QUESTIONS, QUESTIONS,...

Now, in many jurisdictions, like the UK, this form of contempt has been even abolished...
On 10 December 2012 the House of Lords debated, and accepted, the abolition of scandalising the court as an amendment to the Bill. All the Lords who spoke were in favour of abolition. 
People will comment, criticize...judges, judgments, etc - but is this not freedom of speech and opinion. Would not such comments be the reason why changes will, in Malaysia we are already talking about an INDEPENDENT selection of judges committee - who hopefully will independently recommend on elevations, or extensions..

SECURITY OF TENURE is a topic of discussion today, after the former Chief Justice and President of Court of Appeal issue came up. 
Should not ALL judges retirement age be fixed? 
Should the powers to extend the tenure for a further 6 months for judges be removed - as it can be perceived as some form of 'thank you' to some judges...when some judges get their term extended but not all. 
Should the powers of appointing some retiring/retired judges as 'additional judges' be removed when most retire on their retirement age - but a few can end up serving for an additional 2-3 years?

Extended tenure could be perceived as a form of corruption - remember judges must be independent and seen to be independent from even the Prime Minister, the Government, the Chief Justice or other leaders of the Judiciary, and even the King - Yes, now we have special courts that will decide on cases involving the royalty...and do not judges preside over these Special Courts as well...

We want not only independent judges but BERSIH judges - so allegations of corruption, orders/directive from others are serious issues...we ought to encourage people to highlight any such wrongs ...that will lead to investigation and action. We certainly do not want to turn a 'blind eye' to possible wrongdoings - Faith in an independent judiciary is essential for any country, including Malaysia..

Whether BN or PH is in power should never matter - judges always act independently and justly...
Judges have to be hardy enough to shrug off criticism, even if it is intemperate or abusive, which has happened; even if it is unfair and ill-informed, which has certainly happened; and even if it is downright deliberately misleading, the same applies...I speak from some knowledge. I have been scandalised on several occasions in the course of criminal trials at which I was the presiding judge without a jury. It was intemperate, certainly ill-informed and extremely offensive. I was deeply offended and hurt, but I certainly did not consider attempting to ask anyone to invoke the special procedure of scandalising the court. If anyone had suggested it, I would have firmly discouraged him at that time, which is a good many years ago now. -Lord Carswell

Amendment 113A
Moved by Lord Pannick

113A: After Clause 23, insert the following new Clause—

“Abolition of scandalising the judiciary as form of contempt of court

(1) Scandalising the judiciary (also referred to as scandalising the court or scandalising judges) is abolished as a form of contempt of court under the common law of England and Wales.

(2) That abolition does not prevent proceedings for contempt of court being brought against a person for conduct that immediately before that abolition would have constituted both scandalising the judiciary and some other form of contempt of court.”
Lord Pannick: My Lords, this amendment seeks to abolish the crime of scandalising the judiciary in England and Wales. I am delighted that the Minister has added his name to this amendment. The amendment is also signed by the noble Lord, Lord Lester of Herne Hill, who has played a leading role in arguing for reform of this area of the law. The amendment is also in the names of the noble and learned Lord, Lord Carswell—a former Lord Chief Justice of Northern Ireland—and the noble Lord, Lord Bew.

I can explain the reasons for this amendment very briefly. It is no longer necessary to maintain as part of our law of contempt of court a criminal offence of insulting judges by statements or publications out of court. The judiciary has no need for such protection. As the noble and learned Lord, Lord Carswell, explained in Committee, the wise judge—and he, if I may say so, was a very wise judge—normally ignores insults out of court. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, made a similar point in a case he decided, as he may recollect. Judges, of course, are as entitled as anyone else to bring proceedings for libel, and some have done so.

The law of scandalising the judiciary could have been left in the moribund state in which it has rested for many years. However, the Attorney-General for Northern Ireland unwisely chose earlier this year to seek to breathe life into it by bringing a prosecution, later dropped, against Peter Hain MP for some critical comments he had made in his autobiography concerning a Northern Ireland judge. That prosecution had two main consequences. First, it substantially increased the sales of Mr Hain’s book and, secondly, it led to this amendment.

When we debated this subject in Committee on 2 July, the Minister gave a cautious welcome to the amendment but said, very properly, that the Government wished to consult on the matter. As a result of the debate in this House, the Law Commission expedited the publication of a consultation paper on 10 August in which it proposed that the offence of scandalising the judiciary should indeed be abolished.

I emphasise that the amendment will not affect other aspects of the law of contempt of court and in particular the powers of the judge to deal with any disruptions during court proceedings. I also emphasise that the amendment is not designed to encourage criticism of the judiciary. Much of the criticism to

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which judges are subjected is ill informed and unsubstantiated. However, even where criticism is unjustified, it should not be a criminal offence.

The amendment will not affect the law in Northern Ireland or Scotland, in the latter of which the offence is known as “murmuring judges”. I understand that in Northern Ireland more consultation is required. It is ironic that the impetus for this amendment came from the Peter Hain case in Northern Ireland, and now the anachronistic law that led to that case is to be abolished in England and Wales but not in Northern Ireland. I hope that the Minister can give us an indication of when consultations with Northern Ireland will be completed and a decision reached.

Meanwhile, I am delighted by the historic decision which I hope that this House will take tonight to approve an amendment abolishing the offence of scandalising the judiciary in England and Wales. As Justice Albie Sachs said on this subject in a judgment in the Constitutional Court of South Africa in 2001, respect for the courts will be all the stronger,

“to the degree that it is earned, rather than to the extent that it is commanded”.

I beg to move.

Lord Lester of Herne Hill: My Lords—
The Minister of State, Ministry of Justice (Lord McNally): My Lords, I wonder if my noble friend will give way. I want to intervene now because what I am going to say will help the shape of the debate. I realise that my noble friend and a number of noble and learned Lords may wish to contribute. I in no way want to cut short or pre-empt that debate, but I hope that my comments will establish the context for them to comment on what the Government intend to do.

As the noble Lord, Lord Pannick, told us, we considered a similar amendment to this in Committee in July. I said that the Government were sympathetic to the concerns raised about the offence of scandalising the judiciary but we wished to consider the issue further and to consult others. In particular, before moving to reform or abolish this offence, we wished to consider whether such a step could result in a gap in the law or have an unwanted side-effect.

As the noble Lord, Lord Pannick, told us, in this we had the benefit of the work of the Law Commission, which was and is currently reviewing the law on contempt of court. As the noble Lord said, it kindly brought forward the element of its review considering scandalising the court and published a paper for public consultation in August. The commission considered three options in its consultation paper—to retain, abolish or replace the offence—and it has concluded that the offence should be abolished without replacement. Its analysis was in-depth, examining the human rights aspects and considering the arguments for and against the various options.

The consultation closed in October, and the commission published a summary of responses last month and a summary of its conclusions yesterday. I was pleased to see that several noble Lords responded with their views, and that members of the judiciary and other legal professions were also well represented. Of 46 responses, some from organisations, 32 were in

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favour of abolition. The remainder expressed a variety of views, most favouring a replacement offence, but I note that only two favoured retaining the offence in England and Wales, at least for now.

We have also noted other views, such as those expressed by noble Lords in Committee, and have concluded that it is right that this offence should be abolished. We therefore support the amendment. However, we also noted the Law Commission’s observation in its paper that:
“It may be necessary to clarify that the abolition of this offence does not affect liability for behaviour in court or conduct that may prejudice or impede particular proceedings”.

We support that view that abuse of a judge in the face of the court, or behaviour that otherwise interferes with particular proceedings, should remain a contempt. The new clause includes a provision that will ensure such behaviour will remain subject to proceedings for contempt of court.

In contrast to the amendment we debated in Committee, which extended to Northern Ireland, this amendment applies to England and Wales only, as the noble Lord, Lord Pannick, explained. In July, I said that we would be consulting the devolved Administrations; noble Lords must remember the criminal law is a devolved matter in both Northern Ireland and Scotland. Scandalising the judiciary is also a common law offence in Northern Ireland. As I have said, we consulted with the Minister of Justice, David Ford, who has confirmed that he does not wish the Westminster Parliament to legislate on behalf of the Northern Ireland Assembly on this offence. Similarly, the Scottish Government have also confirmed that they do not wish us to legislate on their similar common law offence of murmuring judges. Given that this is a devolved matter in both jurisdictions and under the terms of the Sewel Convention, we wish to respect the wishes of the Scottish Government and Northern Ireland Assembly in this matter.

I am grateful to my noble friend Lord Lester and the noble Lord, Lord Pannick, for bringing this matter before the House. The Government are happy to support this amendment, and through it the abolition in England and Wales of the offence of scandalising the judiciary. I hope that my intervention at the start of the debate does not prevent other noble Lords and noble and learned Lords from making observations on where we are and where we are going.
4 pm
Lord Lester of Herne Hill: My Lords, I declare a former professional interest in that I acted for the Northern Ireland Human Rights Commission in the aborted contempt proceedings in relation to Peter Hain and his publisher. I am extremely grateful to the Attorney General for Northern Ireland for his entirely misguided decision to move for committal because, but for that, I would not be standing here in support of the amendment. We owe everything to the Attorney General because it was that which caused me to contact the Law Commission and the Government, and to discuss the matter with my friend, the noble Lord, Lord Pannick, in the first place.

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It is important that the Government have decided to do what we have just heard from the Minister, and that is most welcome. However, I pay tribute to the previous Government, and I see the noble Lord, Lord Bach, in his place when I say this. He will remember that the other antique and archaic speech crimes of sedition, seditious libel, defamatory libel, obscene libel and blasphemous libel were all abolished by the previous Government and Parliament for similar reasons connected with free speech.

So far as blasphemy was concerned, for the reasons given by the Minister, it was decided that, although we could abolish that offence in Britain, we could not do so in Northern Ireland. We left it to Northern Ireland to do so itself, and we thought that it would be easy to do there because Northern Ireland already had a law on incitement to religious hatred that was rather stricter than what we have in this part of the kingdom. However, nothing has happened on that issue in Northern Ireland because there is institutional paralysis about doing anything of the kind. I know that this matter has concerned the Northern Ireland Human Rights Commission, and exactly the same problem arises now. Even though the amendment springs from a problem that arose in Northern Ireland, I am doubtful as to whether the Northern Ireland Government will agree to bring their common law into line with what we are doing in England and Wales. However, given that two other supporters of the amendment know far more about Northern Ireland than I would ever know, I shall not say more about that matter.

I should like to make one other point. Although abolishing this crime in this country will make very little difference because the law is entirely obsolete, it will make a difference in the rest of the common law world. All the textbooks, including that of the noble Lord, Lord Borrie, say the same thing, which is that, although this is an outmoded and archaic offence, there remain many parts of the common law world where it is enforced. The most notorious example occurred in Singapore last year, where Mr Alan Shadrake, who wrote a book criticising the Singapore judiciary’s attitude towards the death penalty, was committed for contempt, sentenced to prison, fined and told to pay legal costs. This gentleman, who is about my age and a distinguished senior writer, was condemned in that way, with the Singapore Court of Appeal applying its view on our case law and this offence.

By abolishing the offence today we do not really change much in this part of the world because, apart from what happened in Northern Ireland, it is simply never invoked anymore. However, it will send an important message across the common law world. That is another reason why I am so delighted that the Government have decided to take this course.
Lord Carswell: My Lords, I support this amendment. I spoke briefly in Committee and I intend to be brief again today, particularly in view of the way in which the House has so far received the amendment and what the Minister has said.

Since that debate in Committee, the Law Commission has published this admirable consultation paper, which contains a full and helpful discussion of the issues, the principles and the possible solutions. My view, which

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was very direct and brief in Committee, remains unchanged. The special sanction for judges remains unnecessary. My reasons remain the same. Judges have to be hardy enough to shrug off criticism, even if it is intemperate or abusive, which has happened; even if it is unfair and ill-informed, which has certainly happened; and even if it is downright deliberately misleading, the same applies.

I speak from some knowledge. I have been scandalised on several occasions in the course of criminal trials at which I was the presiding judge without a jury. It was intemperate, certainly ill-informed and extremely offensive. I was deeply offended and hurt, but I certainly did not consider attempting to ask anyone to invoke the special procedure of scandalising the court. If anyone had suggested it, I would have firmly discouraged him at that time, which is a good many years ago now.

After I read the Law Commission consultation paper, I considered quite seriously whether there was room for the possibility of a new and more specific offence, penalising possibly deliberate and malicious targeting of a judge by making untrue and scandalous allegations into something of a campaign. I am persuaded, however, that it is better not to introduce any such offence into the law but simply to leave it at abolishing the offence of scandalising.

My reasons are three. First, special protection of judges immediately invites criticism from those who are all too ready to give vent to it. Secondly, if a judge had to give evidence in such proceedings, it would create a further and better opportunity for intrusive cross-examination and create a field day for publicity for critics of the judiciary. Thirdly, as I have said before, judges have to put up with these things; they have to be robust, firm and, on occasions, hard-skinned enough.

The Law Commission, in my view, was right in its provisional conclusions and I hope that when the report has been considered, the responses will confirm that. I would certainly support the amendment that the offence should simply be abolished.

Finally, as noble Lords have said, this of course does not apply in Northern Ireland. The authorities there will form their own view and take their own course. I cannot and do not in any way speak for them, nor have they consulted me about such provisions. I have to say, and I hope that they will take this into account, that I cannot see any reason why judges in Northern Ireland should have any different protection from judges in England and Wales against scandalising. I think the same considerations apply, and having been a judge there for 20 years, I would certainly not wish to see any differentiation.
Lord Beecham: My Lords, I echo the remarks made by the Minister and by other noble Lords. We are entirely supportive of the amendment, and glad that the Government have agreed to take matters forward in the way that the noble Lord indicated.

Lord McNally: My Lords, I will clarify a point raised by the noble Lord, Lord Pannick. The Justice Committee in Northern Ireland recently agreed to proceed with an amendment to its Criminal Justice Bill that would see this offence repealed. I am sure that

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the words uttered by the noble and learned Lord, Lord Carswell, about his own experience will carry great weight. However, this is a devolved matter for Northern Ireland.
Lord Pannick: I am grateful to all noble Lords who spoke.


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