Freedom to comment on the judiciary

The independence of the judiciary is always suspect when judges are nominated by the President and confirmed by the Senate, and not by the People.

– a Native American judge

In some countries the freedom of the press, speech, expression and association are celebrated on paper only as a window dressing. Nevertheless, the powerless but enlightened and awakened citizen should be allowed to make constructive criticisms concerning the administration of justice. Aren’t judges public officers? Aren’t they paid out of citizens’ tax money?

The judiciary is one of the three organs of state if one agrees that they are designed to serve the citizens. If the executive and the legislature are open to criticism, what’s so special about a Janus-faced judiciary that is highly apprehensive of an unforgiving executive?

The motivation to comment usually arises when a judicial pronouncement is viewed as anathema to common sense, to the citizen’s views on public policy, and to that mercurial “rule of law”. But, comments in favour of the judiciary for its trail-blazing judgments that drained a stinky swamp are welcome.

The US Supreme Court recently overruled Roe v. Wade, the controversial 1973 abortion rights case that favoured abortions in certain special circumstances. The vitriolic backlash from hardcore liberals will hardly ever abate. In 1973, the US Supreme Court discovered, insisted upon, and applied “freedom of choice” as a constitutional right that has never been implied, suggested or insinuated in the supreme law of America.

Everyone celebrates the role of the judiciary as the guardian and protector of our liberties when a great decision is delivered. The bouquets never stop. Brickbats start flying when an unpopular decision is handed down plagued with the wrongs, errors and mischiefs it failed to remedy.

In the Prashant Bhushan case, the Supreme Court of India made a telling point: “Critics are instruments of reform but not those actuated by malice … hostile criticism of judges or the judiciary would amount to scandalising the court.” The freedom of speech to make a genuine comment aimed at law reform in the wake of a judicial decision seems welcome.

Malaysia celebrated the overruling of the infamous Ayer Molek case when a courageous judge refused to accept the Federal Court’s decision that was designed and delivered with utter malafide intentions. This judge did not mince his words when he made it abundantly clear that legal advisers had misused and abused the process of the High Court “by manipulating the case in such a way that it becomes manifestly unfair to the defendants”.

Another Malaysian judge who exposed the sleaze and stench in the judiciary was summarily relieved of his judicial functions as he “scandalised the court”, among other deservedly fatal wounds he inflicted upon his robed brethren. Contempt of court charges were subtly applied to this hapless jurist’s revelations fortified with no whistle-blower protections.

America, the pillar, paragon and paradigm of freedom, is always remembered for that dastardly decision in the Dred Scott case which declared that a freed slave was mere chattel – a piece of property – free to be bought and sold at will by the “owner.” The aftermath of this case triggered the American Civil War and the assassination of President Abraham Lincoln.

Several months ago a Malaysian online news portal was unjustly and improperly slapped with a massive fine for “scandalising the courts”. If facts matter at all, as it should in a court of justice, the editors were a wee bit late in deleting some vile remarks about the judiciary made by some of the subscribing commentators. The fact that the mistake was discovered and proper remedial action taken did not matter. This is one fine example of scandalising the freedom of speech.

The usual charge of contempt of court is levelled against anyone who causes the lowering of the dignity of the court with disrespectful comments. Contempt of court should only apply when a litigant disobeys a court order, or engages in misconduct or improper behaviour in an open court of law. Lawyers are not spared, too.

That phrase “independence of the judiciary” is now a standing joke in countries where fundamental freedoms are freely under attack in the name of “democracy”. All hell should break loose when judges substitute their own political views for the law which is an insult to the conscious and enlightened  citizen.

Alexander Pope epitomised it brilliantly:

The hungry judge soon the sentence sign,

and wretches hang that jurymen may dine.

The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.