scared of black-coated bluster?
So the president of Sri Lanka's Bar Council wants journalists and
others to be taken to the cleaners for reports critical of judges
and the judiciary
The recent exchange of pleasantries between the Bar Council and
the Editor's Guild follows unsolicited advice proffered by Bar Association
President Ikram Mohamed PC to the Appeal Court to use contempt powers
available under the constitution to charge those whose criticisms
are perceived to be offensive to the judiciary.
have not read all that the president of the Bar Council had to say
on the subject on the occasion where he was free with his advice.
When I was in Colombo last December there was much talk even among
lawyers, of a new brand of PCs. I thought they referred to some
new presidents counsel who seem to proliferate like rabbits.
the Sri Lankan penchant for sarcasm and finding humour in the strangest
of situations had given the abbreviation a more significant meaning.
Who would have expected some wag to give the initials a twirl and
come up with Poya Counsel after some dubious legal dealings on a
poya day by a couple of members of the Bar Association that Ikram
Mohamed now proudly represents.
would come as no surprise if, by now, he himself has been elevated
to the lofty status of CJ. No, no not Chief Justice but Counsel
for the Judiciary. Since we cannot all go to Mohamed- certainly
not from where I am right now- perhaps one could prevail on Mohamed
to come to us with an explanation of what precisely he meant by
"irresponsible and false reports" against judicial officers.
falsity or otherwise of reports could be fairly easily established.
But "irresponsible"? That does raise some questions. Is
Mr. Mohamed saying that any criticism of the judiciary or the judges
is necessarily irresponsible? Is he saying that the judiciary and
those who dispense justice are untouchables and therefore above
and beyond criticism?
it his position that while the executive, legislature and public
service are legitimate targets of criticism, the judiciary enjoys
a sanctity that insulates it from public castigation?
the Bar Council president, we too are concerned about the independence,
impartiality and integrity of the judiciary. That is all the more
reason why it should be subject to closer scrutiny to ensure that
the highest standards are maintained. Public institutions in a free
society must be judged on their own merits. They cannot be supported
if their conduct does not command the respect and confidence of
the people they serve. Let the people judge whether our judiciary
and its conduct deserve that respect.
Mohamed might earn the undying appreciation of the judiciary for
this intervention. But it is time surely that he stepped into the
modern age. I do not know where Mr. Mohamed studied his law or when.
But it does seem that he needs to update himself with regard to
the media, the public interest and use of contempt of court powers
in common law jurisdictions.
he thinks that like the King, the judiciary too can do wrong. If
that is so he is living in cuckoo land. If Mr. Mohamed was trying
to build a protective arc round the judiciary by holding the threat
of contempt charges against critics of judicial decisions or the
behaviour of judges, then he is defeating his original purpose -
to ensure public confidence in the system.
confidence in the judiciary, like in lawyers themselves, cannot
be forcibly extracted from the people as a dentist would a tooth.
That confidence has to be won.
Mr. Mohamed might read and inwardly digest these words of a former
chief justice of Australia, Murray Gleeson."The independence
and impartiality of the judiciary are not private rights of judges,
they are the rights of citizens. Confidence is not maintained by
stifling legitimate criticism of the courts or their decisions."
the President of the Bar Council had spent some time reading about
the criticisms that courts and judges are subject to in other countries
before rushing to defend our courts and judges, he might have been
in the UK judges are being criticised by politicians, public, media
and academics. So far as I know none of them has been hauled up
before the courts, charged with contempt and thrown into a Guantanamo-like
time in February last year Justice Collins was subject to a personal
attack by the tabloid Daily Mail over a judgment delivered by him
in an asylum case.
I do not for a moment suggest that abuse of judges should be permitted
if such criticism does not serve any larger purpose such as public
to reject personal abuse does not mean that one must refrain forever
from criticising the judiciary and judges if such exposure is for
the public good.
the private life of persons in public life that impinge on their
public role could be examined, why should judges be exempt? A couple
of years after New Labour came to power in 1994, differences arose
between the government and the senior judiciary.
a more tolerant society, the judiciary here did not put half the
newspaper editors in the dock. The senior judges did not suffer
from the same mindset as Ikram Mohamed and others in the Bar Council
who think like him. The Daily Express referred to the "sickness
sweeping through the senior judiciary-galloping arrogance."
Sunday Express was even more forthright declaring that while "European
Human Rights judges, some of them from countries which once sent
political prisoners to Siberia, are venting their spleen on Britain,
legal weevils here are practising their own brand of mischief."
Contempt of Court Act 1981 gives protection to media reports which
are a discussion of public affairs as long as the risk of prejudice
to a particular case is merely incidental to the wider discussion.
I refer Mr. Mohamed to Michael Addo's "Freedom of Expression
and the Criticism of Judges: A comparative study of European Legal
editor states that the European Court on Human Rights has stressed
the importance of the principle of open debate and free speech and
has rejected attempts to justify restrictions on criticism of public
officials. That principle also applies to the criticism of judges
and their decisions.
President of the Bar Council should understand that modern society
is more knowledgeable and therefore more critical and demanding.
This requires the judiciary to assess more carefully the justice
system and how it could best respond to this public concern, the
call for greater transparency in its judicial process and to public
media have a role and duty to see that the judicial process is not
corrupted and judicial integrity is maintained. We charge no fee
for it. That is a sacred responsibility performed on behalf of the
public. No veiled threats by those who should know better will intimidate
the media to abandon that task. Certainly not Bar Council bluster.