AUG 28 — For the uninitiated, the distinguished practising member of the English Bar, Quintin Hogg QC who criticised the judgment of the Court of Appeal with much vigour was also a Member of Parliament.
He was said to be a contender to succeed Harold Macmillan as British prime minister in 1963, but was passed over in favour of Alexander Frederick Douglas-Home (October 1963 to October 1964) who was succeeded by Harold Wilson (October 1964 to June 1970 and March 1974 to April 1976).
The political setback aside, Hogg built up his practice at the English Bar where one of his clients was Prime Minister Wilson, then a political opponent. Hogg went on to be known as Lord Hailsham LC (Lord Chancellor), head of the Judiciary for two terms (June 1970 to March 1974 and May 1979 to June 1987) under two different prime ministers (Edward Heath and Margaret Thatcher respectively).
When Hogg wrote that blindness “sometimes descends on the best of judges”, Lord Denning responded as cool as one could be by saying, among others, that “nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right.”
The Court of Appeal was moved for an ex parte order that Hogg was guilty of contempt of court, and for such further order as to the court might seem expedient and just, in that he had published an article which brought or sought to bring the Court of Appeal into ridicule or contempt or to lower its authority.
Despite the article containing an error about the appellate court, the Court of Appeal was not moved. Lord Denning said:
“The article contains an error, no doubt, but errors do not make it a contempt of court. We must uphold his right to the uttermost. I hold this not to be a contempt of court, and would dismiss the application.”
The other appellate judge, Lord Scarman, was equally lucid that a publication “however vigorous, however rumbustious, however wide of the mark, whether expressed in good taste or in bad taste” could not amount to contempt of court, provided “it keeps within the limits of reasonable courtesy and good faith.”
The third and final judge, Lord Edmund Davies concurred, saying that the right to fair criticism “is part of the birthright of all” and that though it had its boundaries, that right “covers a wide expanse” including the judgments of the courts and all other topics of public importance.
The case was the first case of contempt by “scandalising the court” (when the judges of a court are criticised or defamed) ever to come directly before the Court of Appeal, and the first case of contempt to come before any court since the 1930s.
However, even as the courts then had accepted that their decisions might be subjected to fair criticism, in good faith, without attributing improper motives to the judges, the courts had also considered that it was necessary for the purpose of maintaining public confidence in the administration of the law that “there should be some certain and immediate method of repressing imputations upon courts of justice which, if continued, were likely to impair their authority.” (R v Dunbabin [1935])
So, what is keeping within the limits of reasonable courtesy and good faith and what is scandalising the courts?
Many jurists consider contempt by scandalising the court to be obsolete. Cases from Commonwealth jurisdictions in fact suggest that contempt by scandalising the court has become obsolete and irrelevant in modern democracies – where public institutions are subject to scrutiny and comment in the exercise of freedom of speech and of the press.
However, the Federal Court in the case of PCP Construction Sdn Bhd v Leap Modulation Sdn Bhd (Asian International Arbitration Centre, intervener) [2019] recently found lawyer Arunachalam Kasi to have scandalised the apex court by making various allegations regarding judicial conduct in the hearing, disposal and adjudication of a civil application before the Federal Court in two articles published online by a news portal known as Aliran.
The Federal Court unanimously ruled that it was satisfied beyond reasonable doubt that the lawyer’s statements were calculated to erode public confidence in the administration of justice and the Judiciary. The apex court was not persuaded that the articles were authored in the public interest. It was clear that the authority of the law as administered by the courts was flouted.
According to the Court, the statements had tarnished the good name of the Judiciary as a whole, undermined public confidence in the Judiciary and ridiculed, scandalised and offended the dignity, integrity and impartiality of the court.
The message is clear. No one shall undermine public confidence in the Judiciary.
* This is the personal opinion of the columnist.
