The Supreme Court and its Judges are not above criticisms but any criticism laid at the doorstep of the Supreme Court or of its Judges, must be fair, constructive and without, in any way, imputing improper motives. “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 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 respectful even though outspoken comments of ordinary men.”
These wise words were pronounced by Lord Atkins in the case of Ambard v A-G for Trinidad and Tobago as he warned on the dangers of undermining the administration of justice.
Freedom of expression is no doubt the backbone of a democratic society based on the rule of law and the independence of the judiciary. And it is to be expected that there will always exist a tension between the right to exercise that freedom of expression on the one hand and the right not to bring the administration of justice into disrepute. Section 12 of our Constitution acknowledges that fact. This is why the drafters of our Constitution have, in their wisdom, provided that the guarantee to the freedom of expression is subject to qualification (1) for the purpose of … “maintaining the authority and independence of the courts”, and (2) shown to be “reasonably justifiable in a democratic society”.
The basis of the legal principle is sound. Judges and courts are alike open to criticism and if reasonable argument or expostulation is offered against any judicial act as being contrary to law or the public good, it cannot seriously be argued that such adverse criticisms were meant to undermine the integrity of the judges and the courts and in the process cause the general public to lose confidence in the administration of justice. However, if those making the criticisms were actuated by malice and imputed improper motives to those taking part in the administration of justice with a clear view to impairing the administration of justice, then the offence of contempt will have been committed.
Our Supreme Court has fulfilled its responsibilities in a highly commendable manner since independence. It has ensured that the Constitution is fully adhered to by the Executive and Parliament and every time there has been an attempt by the executive to usurp the powers of the judiciary or to enact abusive laws contrary to the rights of the individual guaranteed under chapter II of the Constitution, its Judges have risen to the occasion by affirming the supremacy of the Constitution as laid down by the relevant section of that document.
It has forcefully defended our rights pertaining to personal liberty (Noordally V Attorney General), a fair trial (Bhinkah V The State, Madhub V The State), freedom of conscience (Aumeer V L’Assemblee de Dieu, Tengur V Bureau Education Catholique), freedom of expression (Rogers Phillip v Comptroller of Customs), freedom of association (Bizlall v Commissioner of Police), freedom of movement (Rishi v Passport Officer) and regarding deprivation of property (Union of Campement Sites Owners V Government),
There is absolutely no doubt that the judiciary has always stood on the side of the individual to safeguard the latter’s right in accordance with the letter and spirit of the Constitution. So when a section of the media licensed by the Independent Broadcasting Authority chooses, for obvious sensational motives, to air unfair criticisms against the Supreme Court and impute improper motives to its judges, aren’t we doing a disservice to an institution which represents an important pillar of our democracy?
The IBA, unfortunately, does not see it that way and would appear not to take it seriously enough if the confidence of our public in the administration of justice is eroded. Time and again, the IBA has been invited to regulate abuses on the part of its licensees. It should perhaps be reminded that the liberty of the press is not absolute and in any event no greater and no less than the liberty of every citizen of this country.
* Published in print edition on 6 August 2010