Thoughts from London

Who's 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.

I 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.

But 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.

It 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.

The 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?

Is 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?

Like 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.

Mr. 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.

Perhaps 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.

Public 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.

Perhaps 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."

If 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 more reticent.

Here 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 hellhole.

Some 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.

Now 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 interest.

But 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.

If 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.

Being 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."

The 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."

The 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.

May I refer Mr. Mohamed to Michael Addo's "Freedom of Expression and the Criticism of Judges: A comparative study of European Legal Standards."

Its 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.

The 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 criticism.

The 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.

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