Courts ‘must uphold free speech’

ISLAMABAD:

The Islamabad High Court (IHC) has noted that the court must exercise restraint and uphold the right of freedom of speech so that the law of contempt operates in a manner least restrictive of the freedom guaranteed by Article 19 of the Constitution.

"In striking a balance between the right to freedom of speech and public interest in the administration of justice, when it comes to question of judicial contempt based on criticism of the judgment in a matter that has been decided by a court, the court must exercise restraint and uphold the right of freedom of speech so that the law of contempt operates in a manner least restrictive of the freedom guaranteed by Article 19 of the Constitution," reads 23-page judgment authored by IHC's Justice Babar Sattar while dismissing contempt petition against PTI Leader Fawad Chaudhary.

"Criminal contempt has been defined in section 2(b) of the Ordinance as the doing of any act with intent to, or having the effect of, obstructing the administration of justice," it observed.

Likewise ‘judicial contempt” has been defined under section 2(c) of the Ordinance as “the scandalization of a Court and includes personalised criticism of a judge while holding office”.

The court also said that the role of intent in a case of criminal contempt is to be distinguished from that in a case of judicial contempt. It said that criminal contempt attracts strict liability and intent is irrelevant so long as the effect, as determined objectively by applying an ordinary person standard, is that of causing substantial detriment to the administration of justice.

The judgement further explained that in judicial contempt, on the contrary, intent to bring the court into hatred or ridicule is a constituent part of the offence. In striking a balance between the public interest in free speech and that in the administration of justice, in a case of judicial contempt, the court would find in favour of free speech. In a case of criminal contempt.

However, the court would apply the substantial detriment test objectively to make a determination regarding the effect of the speech or action seen as interfering with the course of justice.

The court also said that the legitimacy and moral authority of this court must rest on the quality or merit of its judgments and not by imposing judicial censorship on criticism of its judgments.

"This court is therefore not convinced that even intemperate and misconceived criticism on a judgment of this court by the respondent would cause serious or substantial detriment to the administration of justice by this court rendering the respondent liable to be tried for the offence of contempt of court.”

The judgement said that the law of contempt, be it in the case of disobedience of court orders, obstruction of judicial processes, interference in the administration of justice or scandalizing judges is not enacted to shield individual judges from the gaze of public scrutiny.

"Its purpose is to nurture and protect the administration of justice and the rule of law. The inroads it makes into regulating free speech is for promoting the rule of law. It indeed lies at the confluence of the streams of justice and free flow of expression, and this must never be lost sight of while considering allegations of contempt of court,” it said.

Read: IHC dismisses contempt of court plea against Fawad

Justice Sattar said that the offence of scandalizing a judge was invented by common law to prevent the undermining of public confidence in the administration of justice. He added that it was used where there is a ‘scurrilous abuse of a judge or a court of law’ or where there is a false imputation of bias or some form of partiality against a judge or when it is falsely alleged that a judge or a court has been influenced by someone.

The judgement also said that it is also true that both judges and the courts are open to criticism where reasonable arguments are advanced and justifications furnished backing such criticism.The expression “scandalizing” the judge has no application to honest criticism based on rational grounds for that would negate the right to free speech and expression,” it noted.

The court said that the question is whether criticism against the judgment rendered by the court, which is intemperate and odious, would scandalize the court and bring it into hatred, ridicule or contempt.

It is often said that sunlight is the best disinfectant. It cannot be fathomed in this day and age that the purpose of contempt law in giving effect to the offence of scandalizing the court is to impose judicial censorship of views critical of the judiciary or judgments.In this context, the judgement noted, a distinction needs to be drawn between the assertion of facts (such as those imputing motives to a judge or impugning the integrity of the judge for example), and the expression of opinions regarding the correctness of a judgment.

"The former would fall within the domain of scandalizing the court. But in case of the latter, speech critical of a judgment already rendered needs to be afforded a lot more latitude."

It explained that the object of contempt law is to protect the public interest in the administration of justice served by an independent judiciary able to dispense justice without being influenced by extraneous consideration (such as fear of incitement or threats and intimidation), as opposed to shielding judges from criticism of their judgments.

Judgments once delivered are public documents and criticism, even harsh or imprudent or irreverent, cannot be seen as shaking public faith in the administration of justice.

"A judgment or the outcome that it produces, even when subjected to trenchant criticism, must stand on its own merit and reasoning. Courts tend to avoid the political thicket. But they cannot refuse to adjudicate issues that have legal dimensions as well as political."

Judgements when rendered in relation to a legal issue involving a political party or that creates political consequences often attract public comments and criticism. Such criticism can be inspired by partisan interests and loyalties as well. So long as such criticism does not impugn the integrity and impartiality of the court, the court must not wield the contempt law to interfere with or pre-empt such criticism even when it is partisan or odious or in bad taste.

"The system of administration of justice is adversarial in nature. One of the two parties walking out of the court is unhappy with the outcome of judicial proceedings. The purpose of contempt law is not to preempt, suppress or censor such criticism. The court must exercise restraint in relation to such speech no matter how trenchant and scathing the criticism. Because, after all, contempt proceedings are sui generis in nature where the court itself stands in the stead of the complainant and must not be seen to be acting in its own cause. This is why section 18 requires that the court must be satisfied that the detriment caused to the administration of justice must be serious and substantial before a conclusion is reached that the person exercising his right to speech is liable to be punished for contempt."

"Consequently where the question before the Court is that of judicial contempt, unless the criticism on the judgment is such that impugns the integrity and impartiality of the judge, it ought not be deemed to scandalize the court."For purposes of contempt law speech must only be proscribed in a manner that is least restrictive of the right of freedom of speech guaranteed under Article 19 of the Constitution.The authority of the judge to dispense justice springs from the constitution itself and the power to haul a citizen for contempt of court is not to be wielded as a stick to shield judges from criticism of their judgments."

The legitimacy of a court in dispensing justice is backed by the Constitution and the foundation of such legitimacy is not so ramshackle so as to be shaken by trenchant criticism even when launched by political leaders or their followers on a partisan basis. In the ultimate resort, the legitimacy of the court, public faith in the court’s creditability and the court’s ability to dispense justice as an impartial arbiter of the law is rooted in the merit of the judicial
decisions and the reasoning of such decisions.

Justice Babar Sattar emphasised that it is history that sits in judgment over the independence and legitimacy of the judiciary and not transient public opinion shaped by partisan loyalties.

"Judges of constitutional courts swear an oath to not be influenced by public opinion in discharging their duties and to be guided by the law and law alone. It can thus not be casually concluded that the criticism of judgments of such judges would cause a substantial detriment to the administration of justice by influencing their opinion in subsequent cases. Consequently, speech critical of a judgment even where such criticism is intemperately launched by political leaders inspired by partisan interests cannot automatically be deemed to be scandalizing
the court or bringing it into hatred, ridicule or contempt of the public-at-large."

It cannot be assumed that the public-at-large is incapable of seeing the merit of judgments or would be influenced by partisan speech, the judgement stressed adding that the public-at-large cannot be deemed to lack agency.