Essay

By Mike Ozekhome, SAN

Introduction

IN last week’s edition, we discussed the following themes: the Position of Criticism of Judges in India, with emphasis on Contempt of Court and wondered whether Fair Criticism is being used as a Shield to Attack the Judiciary.

Today, we shall continue from there and move on to discuss the Position in the UK, Further Darts at the Judiciary elsewhere, after which we shall wonder about the necessity for restraint in criticism of Judges. Happy reading.

FAIR CRITICISM AS A SHIELD TO CRITICIZE THE JUDICIARY (continues)

Vanya Verna therefore opines that judgements can be questioned and that no amount of vehement criticism of a decision can be considered contempt of court if it is kept within the bounds of reasonable civility and good faith.  For example, a speech that a decision is “rubbish and should be tossed into the trash” cannot be considered fair criticism of courts verdict. Such remarks go beyond the bounds of legitimate criticism and demonstrate propensity to undermine the Judiciary’s dignity, authority and prestige. Such vitriol also tends to raise public suspicions about Judge’s integrity, ability, or fairness, and also discourages actual and potential litigants from placing complete trust in the court’s administration of justice. Such may also likely cause embarrassment to the Judge himself in the performance of his judicial duties.

POSITION IN THE U.K.

Going back to our ‘mother’ country – England (or the UK), the home of the common law which is the common denominator in some of the countries reviewed- we can do no better than re-echo the off-quoted words of, possibly, the most famous Judge of the past century, World War 1 veteran, Lord Denning. In R. v Commissioner of Police (1968) 2 QB. 150c, Denning said: “Let me say at once, that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor we will use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. All that we ask is that those who criticize us should remember that, from the nature of our duties, we cannot reply to their criticism. We cannot enter into the public controversy. We must rely on our conduct itself to be its own vindication”, This statement was made after the revered Jurist had been criticised as an “ass”, after he delivered one judgment. But, he never took offence or replied. 

Lord Russel put it more poignantly in Reg v Gray (1990) 2 QB 40, when he illuminated: “Judges and courts alike are open to criticism and if reasonable argument or expostulating is offered against any judicial act as contrary to law or ph kid good, no court could or would treat that as contempt of court” Lord Denning in his later years became known for making comment that didn’t really cohere. The Independent newspaper was so concerned about his decline, that it ran a piece just two days after his death (“If only Lord Denning had died at seventy”)- (http://www.independent.co.uk./voices/if-only-Lord-denning-had-died-at-seventy-1079046.html) 

Lord Denning’s comment about black people serving on Juries, made in 1982, is perhaps his most controversial. He disagreed in his book, “What Next in the Law” that “The underlying assumption is that all citizens are sufficiently qualified to serve on a Jury.” Denning argued: “I do not agree. The English are no longer a homogenous race. They are white and black, coloured and brown. They no longer share the same standards of conduct. Some of them come from countries where bribery and graft are accepted as an undergrad part of life and where stealing is a virtue so long as you are not found out… they will never accept the word of a policeman against one of their own.”The comments caused such backlash that Denning publicity apologised and resigned soon after. (See (https://hub.legalcheek.com/sign-up))

The same Lord Denning was to later pronounce with great erudition that, “Justice has no place in darkness and in secrecy . When a judge sits on a case, he himself is on trial…..if there is any misconduct on his part, any bias or prejudice, there is a reporter to keep an eye on him”.-Lord Denning (Address before High court journalists Association, Dec 3, 1964).

FURTHER DARTS AT THE JUDICIARY

Former Italian Prime Minister, Silvio Berlusconi, once described the Judiciary as the “cancer of democracy.” This presumably had much to do with his personal situation of being accused several times of crimes, including bribing a Judge. Belgian Underminister Theo Francken announced in public that he would disregard a judgment of a Belgian court obliging him to deliver a visa to a Syrian family. Former French President Nicolas Sarkozy qualified Judges as “petits pois sans saveur” (peas without flavor). This sentiment was, in a way, echoed by French President François Hollande, who in October 2016 was quoted as saying: “Cette institution, qui est une institution de lâcheté . . . Parce que c’est quand même ça, tous ces procureurs, tous ces hauts magistrats, on se planque, on joue les vertueux . . . On n’aime pas le politique.” (This institution — the Judiciary — is a cowardly institution, all those prosecutors and those high Judges, they hide themselves, they act self-righteously, they don’t like politics).

In the Netherlands, Geert Wilders, the leader of the Party for Freedom, who was prosecuted and convicted of racial discrimination, attacked the Judges in his case as politically biased, saying, “No one trusts you anymore.” He proclaimed that if he were to be convicted, millions of Dutchmen should be convicted. Some years ago, when he was previously prosecuted for discrimination against Muslims, Wilders said that if he were to be convicted millions of people no longer would trust the Judiciary.

See generally: Geert Corstens: “Criticism of the Judiciary: The Virtue of Moderation” (https://judicature.duke.eda)

It is, as once pointed out by Justice Frankfurter of the U.S. Supreme Court, in Bridges v. California, 314 U.S. 252 (1941), that “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with interests of justice they may forget their common human frailties and fallibilities. They’re have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have been used the paraphernalia of power in support of what they called their dignity. 

Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candour however blunt.”The Holy Bible (James 5:9) reminds us as follows: “Do not grumble against one another, brothers, so that you may not be judged; behold, the Judge is standing at the door”. Admonishing Judges for being inconsistent in acts of the Apostles 23:3 (ESV), St Paul angrily intoned: “God is going to strike you, you whitewashed wall! Are you sitting to judge me according to the law, and yet contrary to the law you order me to be struck?”

WHY RESTRAINT IN CRITICISM OF JUDGES

Outlandish, personalised? And direct criticisms of, and attack on Judges erode confidence in and undermine stability in the Judiciary. Judges are not in a position to defend themselves, or respond to criticism, no matter how virulent, false and It is thus unfair to hit at a person who is not in a position to defend himself. Justice is rooted in confidence. Any attempt to erode that confidence in the Judex is counter-productive. 

Criticising Judges brings the administration of Justice to deep disrepute and ridicule. Faith in the administration of Justice is one of the pillars through which democratic institutions function or sustain. Criticism of Judges in their personal capacities (rather than their judgments) must be avoided like a plague. Such impairs and hampers the administration of justice. This is why Judges themselves must do what is right. In the words of Abraham Lincoln in his famous speech in 1965, “with malice towards none, with clarity for all, we must strive to do the right in the light given to us to determine that right.”

If Judges themselves decay, the contempt power they wield will itself also decay. “The other side of the coin is that Judges, like Caesars wife must be above suspicion (per Krishna Iyer, J, in Shrr Baradakanta Mishra v. The Registrar of Orissa High Court of Anor (1974 ISC. 374)

CONCLUSION

Nigerian Judges are notoriously over-worked and under-paid. They may not be saints- no one is, after all. But, they hardly deserve the scurrilous, uncharitable and, sometimes, unfair and destructive criticism which has been their lot, especially since the return to democracy about 24 years ago. The heating up and politicization of the polity appears to be complete, as even the Judiciary is not spared of the dirt. It is now seen as fair game on the chessboard of politicians. Judges have in effect, become mere sitting lame ducks- to be viciously lampooned, attacked, castigated and condemned at will- by the political class, their hirelings and some members of the public at large. Some of these critics lack the rudiments of what it takes to resolve disputes according to law.

We concede that like their counterparts across the world, court judgements are not immune to criticism- so long as it is constructive and made in good faith. What is unacceptable and must be condemned by all men and women of goodwill, is to target an individual Judge or Judges for personal attacks for doing their job, such as was recently done by some people in reaction to the Supreme Court’s decision which recognized the Senate President, Ahmed Lawan, as the Senatorial Candidate of the ruling APC, ahead of Bashir Sheriff Machina, who clearly won the election – in which Ahmed Lawan never even participated.

As glaring as that injustice might seem, it did not warrant the intemperate language which some critics deployed in literally insulting the persons of the esteemed members of that noble court – the highest court of the land. This is unfortunate, to say the least; especially because Judges are precluded by their Code of Conduct, from speaking out (at least, individually), in their own defence. Suffice it to say, that whilst it is lawful to criticize the pronouncement of a court (or the Judiciary as an institution), it is grossly unacceptable to attack the persons or integrity of individual Judges, simply because their verdicts- sitting as a court, – are unpopular. Judicial decisions are not popularity contests. 

Consequently, when Judges fall short of popular expectations, we must resist the temptation of attacking the messenger. We should, instead, focus on the message – and do so constructively, with moderation, decorum and utmost civility. We have options – appeal such judgements; or where the pronouncement was by the Supreme Court, humbly ask for a review. The Supreme Court has since accepted its power to review unfair decisions. Thus, in the causa celebre of ADEGOKE MOTORS V. ADESANYA, (1989) 3 NWLR (PT 109), 250, at 261, the apex court itself, per, Oputa JSC, dilated:

“We are final not because we are infallible, rather we are infallible because we are final. Justices of this court are human beings, capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth. It is also true that this court can do inestimable good through its wise decisions. Similarly, the court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be overruled. This court has the power to overrule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error.”

God bless the Nigerian Judiciary – the very last hope of the common man and woman. (Concluded).

THOUGHT FOR WEEK

“I much prefer the sharpest criticism of a single intelligent man to the thoughtless approval of the masses”. (Johannes Kepler).

LAST LINE

God bless my numerous global readers for always keeping faith with the Sunday Sermon on the Mount of the Nigerian Project, by humble me, Prof Mike Ozekhome, SAN, CON, OFR, FCIArb., LL.M, Ph.D, LL.D. kindly, come with me to next week’s exciting dissertation.

A.

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