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Opinions of Saturday, 5 October 2013

Columnist: Korang, Daniel

Truth of a ‘contemptuous’ statement not a defence


Daniel Korang (aka Prof)

The power given to the court to punish people for contempt of itself is very essential as it has the sole rationale of protecting the dignity, integrity, sanctity and veracity of the court. The dignity of the court is inviolable, to say the least. The rationale of any type of contempt is that the administration of Justice has to be protected. Thus if allegations of partiality, bias, dishonesty, partisanship or corruption, even if true, have the potential effect of lowering the Court's repute and thereby undermining public confidence in the administration of Justice, the offence of contempt will have been committed.
The power of court to punish for contempt of itself appears to be unlimited in scope and the courts seem almost untrammeled in committing people for contempt. It is really an unruly horse in that it is the court alone that has the right and power to determine what amounts to contempt of itself. An aspect of the law of contempt which raises serious legitimate concerns is the fact that truth of the contemptuous matter is no defence or justification to the crime of contempt of court. That is even if an alleged partiality or corruption is factually true the allegation is still contemptuous and punishable.
The Supreme Court of Ghana succinctly stated the law in the case of Republic v Mensa-Bonsu And Others; Ex Parte Attorney-General [1995-96] 1 GLR 377 – 531. In rejecting the defence of truth and fair comment, the court held that:
“Truth, what has truth got to do with the offence of contempt? Truth or otherwise of the matter published is no defence in law in the case of contempt of court… Once the matter published scandalises the court, truth is no defence nor is justification… it is no defence to a motion for contempt of court in publishing an account of proceeding held in camera which amounts to contempt, that the matter published was true.”
This is the law. Indeed all lovers of true justice and the rule of law must have possible apprehensions and misgivings about this state of the law. In fact, the practice must be feared whereby judges are placed above criticisms and given the power to punish for any comment which they regard as distasteful, whether the matter is factually true or not. Truth and fair comments are regarded as complete defence to certain charges such as defamation. The similarities between contempt law and defamation law raise the issue whether defences such as truth and fair comment should be available for a person charged with scandalizing the court. As a general rule, it is well-established in most common law jurisdictions that reasoned or legitimate criticism of judges or courts is not contempt of court. The leading case is Ambard v. Attorney-General for Trinidad and Tobago [1936] AC 322, where a local newspaper had been found in contempt by the Supreme Court for criticizing discrepancies in sentencing in two attempted murder cases. The Privy Council overturned the ruling. In holding that reasoned or legitimate criticism was legal the Privy Council held that:
“The path of criticism is a public way; the wrong-headed are permitted to err therein: 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. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and the respectful even though outspoken comments of ordinary men.”
If indeed justice is not a cloistered virtue, then those who administer it should not fear criticism or hasten to punish people who publish factually true comments no matter how distasteful. The law must permit such true revelations because they are in the interest of justice and the public. The High Court of Australia took the same approach in Nationwide News Pty. Ltd. v. Willis (1992) 177 CLR 1, 38 where it suggested that truth could be a defence if the comment was also for the public benefit:
“The revelation of truth—at all events when its revelation is for the public benefit — and the making of a fair criticism based on fact do not amount to a contempt of court though the truth revealed or the criticism made is such as to deprive the court of public confidence.”
Similarly, in the Australian case of Nationwide News Pty. Ltd. v. Willis (1992) 177 CLR 1, pp. 38-39, the High Court of Australia stated:
“A public comment fairly made on judicial conduct that is truly disreputable (in the sense that it would impair the confidence of the public in the competence or integrity of the court) is for the public benefit.”
In addition, the European Court of Human Rights has made statements which suggest that the Court will uphold the defence of truth in contempt cases. Thus in De Haes and Gijsels v. Belgium 24 February 1997, 25 EHRR 1, para. 37, the Court stated:
“The courts — the guarantors of justice, whose role is fundamental in a State based on the rule of law — must enjoy public confidence. They must accordingly be protected from destructive attacks that are unfounded….” (Emphasis mine). The word ‘unfounded’ suggests that where the comment or attack is ‘founded’, ‘true’ and ‘factually accurate’, then the contemnor should be permitted to raise the defence of truth.
Much as it is in the interest of the public to maintain public confidence in the judiciary, it is equally – and perhaps more important – in the supreme interest of the public for unsavory and insalubrious conduct of judges to be exposed through truthful revelations and fair comments. If true revelation of judicial misconduct is not permitted, then the judiciary will remain in, and may plunge deeper into, a quagmire of rot, corruption and dishonesty. For instance, in Bathina Ramakrishna Reddy v. State of Madras AIR 1952 149, the Constitution Bench of the Supreme Court stated:
“The article in question is a scurrilous attack on the integrity and honesty of a judicial office. Specific instances have been given where the officer is alleged to have taken bribes or behaved with impropriety to litigants who did not satisfy his dishonest demands. If the allegations were true, obviously it would be to the benefit of the public to bring these matters into light. But if they were false, they cannot but undermine the confidence of the public in the administration of justice and bring the judiciary into disrepute.”
I think it is not necessary to lay down a wider proposition that a contemnor CAN NEVER justify a statement alleged to be contemptuous of the court even if such statement is true. Any such sweeping proposition of law will have the unsayable effect of contemnors being ‘automatically guilty’ of any alleged contempt charges against them. Since truth is a complete defence to an action for defamation, it should be a complete defence to contempt of court proceedings as well. The current state of the law that truth is no defence has the unworthy effect of perpetuating judicial chicanery, charade, corruption and fraud. It is important that the judiciary must survive on its own merits; if the courts do not perform their functions well, they cannot be expected to claim unmerited respect and public confidence. If indeed the conduct of judges and the courts in general justifies respect and public confidence of Ghanaians, then there is no need for draconian rules on contempt to protect them from criticisms.
Thus, in the Australian case of Attorney-General for NSW v. Mundey [1972] 2 NSWLR 887, p. 908, Hope J stated:
“There is no more reason why the acts of courts should not be trenchantly criticized than the acts of public institutions, including parliaments. The truth is of course that public institutions in a free society must stand upon their own merits: they cannot be propped up if their conduct does not command the respect and confidence of the community; if their conduct justifies the respect and confidence of a community they do not need the protection of special rules to protect them from criticism.” (Emphasis added)
It is important to stress that there is inherent danger in the attempt of the judiciary to sustain unnecessary barriers to factually true complaints and fair criticisms about the performance of the courts. If the courts function well in society, they must not wither away in the heat of criticisms. In the case of R v. Koptyo (1987), 62 OR (2d) 449, the court stated that:
“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.”
It must be feared that the inflexibility of the law of contempt is likely to undermine the administration of justice. If truth is no defence to contempt charges, then the constitutional right of an accused person to defend himself becomes useless. Article 19(2)(k) of the 1992 Constitution provides that “A person charged with a criminal offence shall be permitted to defend himself before the court in person or by a lawyer of his choice.” The right of “defence” embodies the right of the contemnor to either deny any contempt charge against him or justify what he did by proving that the alleged contemptuous statement is in fact true. Anything short of this will create a judiciary that is above fair criticisms. It is suggested that the considerations of public interest and good faith must perforce outweigh this contempt which is based entirely on perceptions.
Since the purpose of contempt law is to maintain public confidence in the administration of justice, it seems logical that criticisms of judges as individuals, rather than as judges, should not be subject to contempt of court proceedings. This was confirmed in In the Matter of a Special Reference from the Bahama Islands [1893] AC 138, where the Privy Council ruled that criticisms of the Chief Justice which were not directed at him in his official capacity as a judge were not contempt. In such cases, the judge could, of course, use defamation or libel laws to remedy any damage to his personal reputation.
The most dangerous aspect of the law is that, where there is a clear case of bias, corruption or misconduct on the part of a judge, it cannot be talked about. Trammeled by the law, it is suggested that if anyone believes that he has evidence of judicial corruption or bias, he could submit a petition to the president under article 146 of the Constitution for appropriate actions.
It must be noted that judicial tolerance is an essential safeguard of the rule of law and the liberty of the individual under the law. The ability of society to provide fair and unprejudiced judicial process is an indispensable basis of any acceptable justification of the restraints and penalties of criminal law. Indeed, the ability of the courts to accept true and fair comments, no matter how rumbustious, is a touchstone of the existence of the rule of law. It is suggested Ghana’s justice system must not be slavishly fashioned after those systems which are rapidly being discarded even in monarchical regimes.
By Daniel Korang (LL.B)

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