Marx, Engels and the Judiciary
Last week, the High Court of the Republic of Singapore convicted the British author Alan Shadrake to six weeks imprisonment and to pay a fine of approximately £9000. The court had found Mr Shadrake guilty of having made contemptuous allegations against the Singaporean judiciary in his book ‘Once a Jolly Hangman: Singapore Justice in the Dock’. Mr Shadrake’s contention was that the judiciary in Singapore succumbs to political and economic pressures and more generally does not mete out justice impartially, lacks independence, is biased against the weak, the poor and the less educated and is a tool of the ruling party to muzzle political dissent in Singapore. He was charged for contempt for scandalising the judiciary.
In court his counsel argued that what the British author had written constituted fair criticism of the judiciary and the author was exercising his right to free speech guaranteed under Article 14 of Singapore Constitution.
Freedom of expression and the right to an independent and impartial system of justice are both safeguarded as fundamental rights in major international and regional human rights instruments on civil and political rights, the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights, the American Convention on Human Rights and the Africa Charter on Human and People’s Rights.
Article 19 of the ICCPR states that everyone shall have the right to hold opinions without interference and everyone shall have the right to freedom of expression, the right to seek, receive and impart information and ideas. In the same vein, Article 14 protects the right to have a fair administration of justice by guaranteeing the right to a fair trial by an independent and impartial tribunal.
Freedom of expression is not an absolute right though, and there are permissible restrictions that include the respect of the rights and reputations of others, the protection of national security, public order or public health and morals. In our own Constitution Section 12 restricts freedom of expression, in so far as it is reasonable in a democratic society, to maintain the independence and authority of our courts.
The rationale which justifies a restriction over the freedom of expression in favour of the maintenance of the independence of our courts was explained in the case of Attorney General v. Times Newspapers Ltd.  A.C. [Appeal Cases] 273, wherein Lord Diplock stated that: “In any civilised society it is a function of government to maintain courts of law to which its citizens can have access for the impartial decisions of disputes as to their legal rights and obligations towards one another individually and towards the state as representing society as a whole. The provision of such a system for the administration of justice by courts of law and the maintenance of public confidence in it, are essential if citizens are to live together in peaceful association with one another.”
Lord Diplock in the same judgment wrote: “The due administration of justice requires first that all citizens have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly, that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law.”
It is essential therefore that the principles, as stated by Lord Diplock, are “sine qua non” conditions to maintain public confidence in the administration of justice. In the same manner it is essential that any dishonest criticisms or scurrilous attacks on the administration of justice, if left unchecked, would impair the confidence of the public in its administration.
In a case reported in Hong Kong, Secretary for Justice V Oriental Press Group Ltd , a newspaper attacked the local judiciary describing judges as “swinish pigs” and judicial “scumbags and evil remnants of the British Hong Kong government”. Likewise in the Indian case EMS Namboodiripad V TN Nambiar, the Chief Minister accused the judges of class bias: “Marx and Engels considered the judiciary as an instrument of oppression and even today when the State set-up has not undergone any change, and is dominated by class hatred, class interests and class prejudices and where evidence is balanced between a well dressed pot-bellied rich man and a poor ill-dressed and illiterate person the judge instinctively favours the former.”
In both cases the maker of the statements were punished for contempt as being outside the limits of fair criticisms and good faith.