~by Alex Au ~
The press release opens with a re-assertion of one of the two usual justifications for the law on scandalising the judiciary. It said: “Accusations of bias diminish it in the eyes of the citizen, lower it and ultimately damage the nation. Such accusations can occur frequently, with the judges not being able to respond. That is why confidence in the administration of justice needs to be protected from such allegations.”
I had dealt with this so-called justification right at the top of my earlier post as well as in its final quarter. Firstly, there is no reason why judges should not be able to respond, and secondly how does one distinguish between allegations and truth unless the initial assertions are allowed to be discussed further and aired?
Sometimes, allegations eventually turn out to be true. To prohibit all allegations is to choke off any further discovery.
A more substantive point from the AGC was this:
A judge can be criticised, even fiercely criticised for getting the law or facts wrong, for getting the decision wrong or for imposing the wrong sentence. This is regularly done by lawyers, academics and lay persons. Such criticism is not contempt. There is no curtailment of free speech that would prevent such criticism. It is contempt however to say that the court was biased if there is no objective rational basis to do so, as Alex Au did.
Where the parties to a case do feel that a judge has committed misconduct, avenues are available to raise the issue, and have it determined within our Court system. Depending on the level of the Court, and the stage of the proceedings, possible avenues include appeal, criminal revision or motions to reopen decided cases.
Although the reopening of a case is very rarely done, there will be reopening if it is shown that an injustice has been caused. Judges guilty of misconduct will be dealt with through various disciplinary mechanisms depending on whether they are district judges or Justices of the Supreme Court.
This part essentially says that the justice system has avenues within itself to correct its own faults. This is a solution only when a justice system has enough integrity to correct itself. However, it is entirely possible, within the realm of imagination surely, that a system may have become so damaged systemically that these avenues are no longer realistic and the ills of the system go beyond single judgments.
At that point, it is free and open debate in society that will be key to highlighting the issues. Such discussion must necessarily begin with observations that are tentative and unproven, and in the public interest, generous leeway should be given to such fair comment.
TOC thanks Alex for allowing us to republish an excerpt of her blog post. The full article can be found at his blog Yawning Bread.