CONTEMPT OF COURT AND CRITICISM OF A COURT’S DECISION: WHERE MUST THE LINE BE DRAWN? PART 2 by Frederick Agaaya Adongo

In Part 1 of this article, I sought to establish the legal underpinnings of the offence of contempt of court and its justification. In Part 2, an attempt would be made to examine the right to freedom of expression in juxtaposition to criminal contempt of court.

The right to freedom of expression is one that has gained world-wide acceptance, and can properly be regarded now as a jus cogens norm if one were to speak of it in international law terms. As a matter of fact, numerous international agreements have espoused in great detail the right to freedom of expression and freedom of the media. A very stunning and remarkable example is Article 19 of the International Covenant on Civil and Political Rights (ICCPR) which provides partly as follows:

  1. Everyone shall have the right to hold opinions without interference.
  2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”. 

Regarding this right, the Supreme Court of Sri Lanka had a momentous occasion to shed more light on the right to freedom of expression in the case of Perera v. The Attorney General in the following language: “The Constitutional protection for speech and expression was fashioned to bring about political and social changes desired by the people. Freedom of speech and expression consists primarily not only in the liberty of the citizen to speak and write what he chooses, but in the liberty of the public to hear and read, what it needs. No one can doubt that if democracy is to work satisfactorily that the ordinary man and woman should feel that they have some share in Government”. 

In this light therefore, that breathtaking and arresting dictum of Amua-Sekyi JSC in the case of New Patriotic Party v. Ghana Broadcasting Corporation [1993-94] 2 GLR 354—393 gains a full-blown legal grandeur. In that case, Amua-Sekyi JSC perfectly underscored the right to proffer divergent opinions thus: “History abounds with examples where those in authority were so sure they were right that they regarded dissent as subversive. The Reformation was preceded by the burning of heretics, and followed by the persecution of papists. The temptation to ride roughshod over the opinions of others must be resisted; for it is only by the free flow of ideas and discussion that error is exposed, truth vindicated and liberty preserved”. 

In that same case, Francois JSC clearly enunciated that “the free exchange of views is necessary to give the electorate an opportunity to assess the performance of the government in power as against the potential of an opposition in the wilderness. It keeps a government on its toes and gives the neutral, apolitical citizen an opportunity to make up his mind either to consign the disenchanted noises he hears around, to mere rabid ranting that proceed from electoral defeat or give it the evocative distinction of demonstrating the quality that unfortunately missed the boat through bad electoral judgment, and therefore deserving of a second chance at the next ballot. In a truly democratic environment, this testing ground is a sine qua non to the survival of a free, pluralist society”. 

Although these remarks were made in respect of the executive, same can be adopted mutatis mutandis in the context of the criticism of judges. In fact, Lord Russell in the Gray case referred to in Part 1 of this article clearly indicated that “Judges and courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could or would treat that as contempt of court”. In view of that, we ought to realize that judges are human and are prone to error. When they make mistakes as regards any proposition of law, ordinary prudence requires that in the interest of our democratic dispensation, such a decision be met with the prodigious criticism that it deserves. This should be done with the sole view that subsequent courts may not be persuaded by decisions of courts which are legally and jurisprudentially leaking and unjustifiable and to further ensure that they are consigned to their proper place.

Hitherto, judges viewed criticism of courts with a skeptical eye. For instance, Wilmot J stated in R. v. Almon, (1765) 97 ER that “Criticism of judges excites in the minds of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them; and whenever men’s allegiances to the laws is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever…” This statement has perhaps outlived its usefulness in light of modern trends in favour of freedom of expression, certainly including criticism of the judiciary, as has already being noted above. It therefore cannot be made to stand in light of modern concepts such as the right to freedom of expression.

To this end, a cursory look at some decisions of the Canadian courts present a dazzling representation of the unbeatable progress made by the courts of that country in encapsulating in judicial terms the need for decisions of courts to be criticized. For instance, in the case of R. v. Koptyo (1987), 62 OR (2d) 449, the Canadian court trenchantly noted that “As a result of their importance the courts are bound to be the subject of comment and criticism. Not all will be sweetly reasoned. An unsuccessful litigant may well make comments after the decision is rendered that are not feliciously worded. Some criticism may be well founded, some suggestions for change worth adopting. But the courts are not fragile flowers that will wither in the hot heat of controversy…. The courts have functioned well and effectively in difficult times. They are well-regarded in the community because they merit respect. They need not fear criticism nor need to sustain unnecessary barriers to complaints about their operations or decisions.”

In Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 the court observed that “Whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises freely the ordinary right of criticising temperately and fairly, in good faith, in private or in public, any episode in the administration of justice. Provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice, or attempting to impair the administration of justice, they are immune from proceedings for contempt of Court.”

In our own jurisdiction, Amua-Sekyi JSC in his dissenting opinion in Republic v Mensa Bonsu and Ors; Ex Parte Attorney General [1995-96] 1 GLR 377 – 531 opined thus: “In exercising the power to commit for contempt, our courts must have regard also to the right of every person to express himself freely and openly on all matters of public concern whether they pertain to actions of the executive, the legislature or the judiciary. One can understand why it is that while a case is pending in court the right to comment thereon ought to be curtailed in the interests of a fair trial which the Constitution, 1992 guarantees for every individual; but it can hardly be said that when a verdict is given, the judges, or the jury for that matter, should be shielded from criticism. The ordinary laws of libel, which prohibit the making of false defamatory statements about other members of the community, are the only check on any abuse of the right of free speech in circumstances such as these.”

Nevertheless, we ought to be cautious in our criticisms lest we open ourselves up for contempt of court. Rights, as we already probably know, are not absolute. They are subject to certain restrictions and limitations. So also is the right to freedom of expression. The Committee of Experts in their Report on the Draft Proposals for the 1992 Constitution in paragraph 191 of the Report stated as follows: “Finally, the Committee appreciates that press and media freedom and independence has to be matched by the highest journalistic standards. A venal and irresponsible press is a danger to democracy. Newspapers which publish lies, knowing them to be lies must run the risk of being suppressed by the courts. Those who operate the media are not immune from the exacting and all pervasive standards of probity and accountability”. 

It is not surprising therefore that Article 164 of the 1992 Constitution subjects the freedom of the media “to laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of other persons”. 

It is in this sense that in the case of Republic v Mensa Bonsu and Ors; Ex Parte Attorney General [1995-96] 1 GLR 377 – 531 the application for contempt of court was upheld by the Supreme Court. In this case, the first respondent’s remark which constituted the ground for the contempt application read partly as followed: “There is no doubt that Mr. Justice Abban’s judgment is tainted with politics. The impression created in his judgment is that of a judge bending over backwards to please the government”. In that case, after the decision of the Supreme Court in the case of New Patriotic Party v. Attorney General [1993-94] 2 GLR 35 (31st December Case), Justice Abban who was a member of that panel read out his opinion in court. The first respondent alleged that he was in court that day and Justice Abban in his judgment attributed a certain statement that had been published in the Daily Graphic newspaper of 24 February 1970 to Dr. K.A Busia, which statement was in fact the editorial opinion—”Graphic View”—of the newspaper. He therefore stated, inter alia, to the effect that Justice Abban had indulged in “judicial chicanery” “plain falsehood”, and had used the bench for “politics of undisguised partisan nature” and “done violence to the truth.”

The court, while recognizing the right to freedom of expression, held him guilty of contempt because those words were scurrilous abuse of the judge in his capacity as a judge and therefore amounted to the contempt of scandalizing the court and the truthfulness of the claim does not exonerate the first respondent from liability. On the issue of truth as a defence, Bamford-Addo JSC noted that “if the truth were a defence, it would give platform for the repetition of the offending original scandal and could also be used maliciously to rake up some damaging episode in a judge’s past life, which conduct would tend to interfere with the administration of justice, the very mischief which contempt seeks to prevent. The jurisdiction does not exist for the protection of an individual judge but for the protection of the court, and therefore if the words complained of amount to “scurrilous abuse” of a judge in his capacity as a judge, …then the offence of contempt of court would have been committed regardless of the truth or the accuracy of the matter published”. 

As can be gleaned from the foregoing, whereas it is a fundamental human right of every person to express himself freely in a democratic dispensation, same is not absolute and must be exercised within the confines of the law. The right to express one’s self freely includes the criticism of the courts to put them on their toes in the dispensation of justice. However, one must be decorous and temperate in his choice of words, in order not to put himself squarely in the basket of the law of contempt of court. In this light therefore, I wish to conclude my essay with the ground-breaking dictum of Adade JSC in the Mensa-Bonsu case that “…judges, like any other group of human beings, do make mistakes, and should, indeed ought, to be criticised. At times some of us feel that our judgments are not criticised enough, especially by the legal profession. I expect, however, that the language of criticism will be tempered and measured. It is not often remembered that judges, seen by many as very strong, are in fact the weakest members in the society—we receive blows, we cannot throw any; a factor to be taken into account when a member of the public is inclined to criticise us”.