APRIL 25 — “Scandalising the judiciary” is a form of contempt of court consisting of publication that “lowers the authority of the judiciary” or is “likely to impede the administration of justice.” Its content must be directed either to an individual judge or judges.
Naturally, an allegation that a judge is corrupt is offensive. Interestingly, however, the former UK Lord Justice Patrick Elias (in "Contempt of Court: Scandalising the Court by The Law Commission, 2012") had this to say:
“In cases where allegations of corruption are made, public confidence is not placated by prosecuting the party making the allegations; that might be seen as seeking to conceal wrong doing. It is necessary to show that the allegations are false. Usually they are too silly for anyone to believe in their truth, and in those cases it is not necessary to have criminal sanctions to uphold the dignity of the judges.”
In gist, the judiciary is honourable. Allowing fair criticism assures that there is nothing to hide and any shortcoming (if any) is remediable. A credible judiciary cannot be seen protecting their own; instead, they must permit fair criticism. The key is, of course, “fair,” i.e. genuinely without malice.
The fundamental right to criticise fairly, even if directed to the judiciary, cannot be rendered meaningless. Justice is not a cloistered virtue: She must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.
To sum up, a line is drawn between fair criticism and scandalising the judiciary. The latter is derogatory whereas the former promotes credibility.
* Nur Rafi'uddin Maswari is a practising lawyer in Kuala Lumpur
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
