The 26th Sultan Azlan Shah Law Lecture was delivered by Lord David Pannick, QC entitled “Scandalising the judiciary: criticism of judges and the law of contempt” on 5 September 2012 at the Mandarin Oriental Hotel to a crowd of approximately 1,000 people from the legal fraternity.
The lecture was timely in light of recent decisions by the Malaysian courts in two separate cases to release men convicted of statutory rape on mere good behaviour bonds. The results of such decisions were fiery criticism against the judiciary from all quarters, most notably from the Attorney General Tan Sri Abdul Gani Patail who criticized such outcomes as an “aberration of justice for those who most need the protection of the law.” Was such scathing criticism acceptable? Did it amount to contempt of court?
Lord Pannick had (probably) unknowingly set out to answer these questions in his lecture, dealing specifically with “critical, rude or downright offensive comments made out of court about judges and justice which do not impede justice in specific proceedings” and the balance between the freedom of speech and the law of contempt.
Citing various examples of criticisms against the judiciary throughout the Commonwealth, Lord Pannick with a touch of humour described how journalists, lawyers and members of the public have been pulled up for criticising the judges. Judges have been called “dogs” by a newspaper editor in Hong Kong and their judicial decisions have been described as “a mockery” and that “stink to high hell” in Canada. The common law offence of scandalizing the judiciary was probably intended to curtail such criticism and to punish such critics.
Lord Pannick is of the firm view that everyone is “entitled to express criticism of a judicial judgment, whether his views are right or wrong, respectful or outspoken” and accordingly the offence of scandalising the judiciary should be abolished.
According to him there are several points to consider whether the criminal offence should be maintained. Firstly, if the threat of a criminal prosecution was necessary to maintain the reputation of judges, the exercise will most likely backfire as this will cause more distrust. Secondly, criticisms are necessary to function as some kind of check and balance and the lack of it could be detrimental to justice itself. Thirdly, it seems quite strange for the public to justify their allegations against the judiciary in court. Lord Pannick rightly pointed out that this exercise, again, does not promote public confidence. Finally, it was said that “where criticism deserves a response, there are other means of answering it than a criminal prosecution.” Just as the public should be free to question, in the spirit of accountability, judges should also be given the opportunity to address these grouses.
If the judiciary is worried that there will be no respect for the judiciary, punitive laws will not enhance it. Quoting Justice Black, Lord Pannick concurred that he doubted that “respect for the judiciary can be won by shielding judges from published criticism”.
While the amendment to decriminalize the offence of scandalising the judiciary is still pending in the UK, it will be interesting to see whether our law makers are prepared to follow suit. Whichever path is taken, let us hope that 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”.
The team from MahWengKwai & Associates, including Raymond Mah, Gan Chong Chieh, Carmen Teh, Selena Kong, Hannah Patrick and Lum Ying Mei attended the lecture and together enjoyed the high tea served thereafter.