Courts ‘must uphold free speech’ | The Express Tribune


ISLAMABAD:

The Islamabad High Court (IHC) noted that the court must show restraint and respect the right to freedom of expression so that the contempt law operates in the least restrictive way of the freedom guaranteed by the 19 of the Constitution.

“In striking a balance between the right to freedom of expression and the public interest in the administration of justice, when dealing with a matter of contempt of court based on criticism of the judgment in a case that has been decided by a court, the court must exercise restrict and uphold the right to freedom of expression so that the contempt law operates in the manner least restrictive of the freedom guaranteed by section 19 of the Constitution reads a 23-page judgment written by IHC Judge Babar Sattar while dismissing the motion for contempt against PTI Chief Fawad Chaudhary.

“Criminal contempt has been defined in section 2(b) of the ordinance as the doing of any act with the intent or having the effect of obstructing the administration of justice,” he said. he observes.

Similarly, “judicial contempt” has been defined in section 2(c) of the Ordinance as “the scandalization of a court and includes personalized criticism of a judge in the performance of his or her duties”.

The court also said that the role of intent in a criminal contempt case must be distinguished from that in a contempt case. He said criminal contempt carries strict liability and intent is irrelevant so long as the effect, as determined objectively by applying an ordinary person standard, is to cause substantial harm to the administration. of Justice.

The judgment further explained that in contempt of court, on the contrary, the intention to bring the court into hatred or ridicule is a constituent element of the offence. By balancing the public interest in freedom of expression against the public interest in the administration of justice, in a case of contempt, the court would decide in favor of freedom of expression. In a criminal contempt case.

However, the court would objectively apply the substantial harm test to determine the effect of the speech or action considered to interfere with the course of justice.

The court also stated that the legitimacy and moral authority of this court should be based on the quality or merit of its judgments and not on the imposition of judicial censorship on criticism of its judgments.

“This court is therefore not persuaded that even an untimely and erroneous criticism of a judgment of this court by the defendant would cause serious or substantial prejudice to the administration of justice by this court, rendering the defendant liable to be tried for the offense of contempt of court.”

The judgment stated that the law of contempt, whether for disobeying court orders, obstructing judicial processes, interfering with the administration of justice or scandalizing judges, is not not enacted to shield individual judges from public scrutiny.

“Its purpose is to nurture and protect the administration of justice and the rule of law. The forays it makes into the regulation of freedom of expression are aimed at promoting the rule of law. effect at the confluence of the streams of justice and the free flow of expression, and this must never be lost sight of when considering claims of contempt of court,” he said.

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Justice Sattar said the offense of scandalizing a judge was invented by the common law to prevent the undermining of public confidence in the administration of justice. He added that it was used when there is a “slanderous abuse of a judge or court” or when there is a false imputation of bias or some form of partiality against a judge or when ‘it is falsely alleged that a judge or court has been influenced by someone.

The judgment also stated that it is also true that judges and courts are open to criticism when reasonable arguments are made and justifications provided in support of those criticisms. The phrase ‘outrage’ the judge does not apply to honest criticism based on rational grounds for doing so would deny the right to freedom of speech and expression,” he noted.

The court said that the question is whether the criticism against the judgment rendered by the court, which is intemperate and odious, would scandalize the court and draw it into hatred, ridicule or contempt.

It is often said that sunlight is the best disinfectant. It is inconceivable today that the purpose of the contempt law, in giving effect to the tort of scandalizing the court, is to impose judicial censure of opinions critical of the judiciary or of judgments. In this context, the judgment noted, a distinction must be drawn between the assertion of facts (such as those attributing motives to a judge or questioning the integrity of the judge, for example) and the expression of opinions as to the correctness of a judgment.

“The first would be in the realm of scandalizing the court. But in the case of the second, the critical discourse of a judgment already rendered must be given much more latitude.”

He explained that the purpose of the contempt law is to protect the public interest in the administration of justice served by an independent judiciary capable of dispensing justice without being influenced by extraneous considerations (such as fear of incitement or threats and intimidation), as opposed to protecting judges from criticism of their judgments.

Once pronounced, judgments are public documents and criticism, however harsh, reckless or irreverent, cannot be considered to undermine public confidence in the administration of justice.

“A judgment or the result it produces, even when subjected to harsh criticism, must be based on its own merit and reasoning. Courts tend to avoid the political thicket. But they cannot refuse to adjudicate on issues that have legal as well as political dimensions.”

Judgments when rendered in relation to a legal matter involving a political party or which creates political consequences often attract public comment and criticism. Such criticisms may also be inspired by partisan interests and loyalties. So long as such criticism does not undermine the integrity and impartiality of the court, the court should not use the law of contempt to interfere with or anticipate such criticism, even when it is partisan. , odious or in bad taste.

“The system of administration of justice is adversarial in nature. One of the two parties leaving the court is unhappy with the outcome of the legal process. The purpose of the contempt law is not to anticipate , to suppress or censor such criticism. The court must show restraint in such remarks, no matter how sharp and scathing they may be, because, after all, contempt proceedings are sui generis in nature, the court himself standing in the place of the plaintiff and should not be perceived as acting on his own. Therefore, Article 18 requires the court to be satisfied that the prejudice caused to the administration of justice must be serious and substantial before concluding that the person exercising his right to speak is liable to a penalty for contempt.”

“Consequently, when the question submitted to the Court is that of contempt of court, unless the criticism of the judgment is such as to call into question the integrity and impartiality of the judge, it should not be considered as scandalizing the court.” For the purposes of the law of contempt, speech must only be proscribed in a manner that is least restrictive of the right to free speech guaranteed by section 19 of the Constitution. The judge’s power to dispense justice derives from the Constitution itself and the power to sue a citizen for contempt of court is not to be wielded like a stick to shield judges from criticism of their judgments.”

A court’s legitimacy to dispense justice is guaranteed by the Constitution, and the foundation of that legitimacy is not so crumbling as to be shaken by harsh criticism even when leveled by political leaders or their supporters on a partisan. Ultimately, the court’s legitimacy, public confidence in its credibility, and its ability to dispense justice as an impartial arbiter of the law are rooted in the merit of the judiciary.
decisions and the reasons for those decisions.

Judge Babar Sattar stressed that it is history that judges the independence and legitimacy of the judiciary and not transient public opinion shaped by partisan loyalties.

“The judges of the constitutional courts take an oath not to be influenced by public opinion in the exercise of their functions and to be guided by the law and the law alone. It cannot therefore be concluded by chance that criticism judgments of such judges would cause substantial harm to the administration of justice by influencing their opinion in subsequent cases.As a result, speech critical of a judgment, even when such criticism is launched untimely by politicians inspired by partisan interests, cannot automatically be called outrageous.
the court or bringing it to hatred, ridicule or contempt by the general public. »

It cannot be assumed that the general public is unable to see the merit of the judgments or would be swayed by partisan speech, the judgment points out, adding that the general public cannot be said to lack agency.

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