In 1899, the Privy Council rules in the case of McLeod v. St Aubyn
that " committals for contempt of court by scandalising the court itself
have become obsolete in this country. Courts are satisfied to leave
to public opinion attacks or comments derogatory or scandalous to them.
But it must be considered that in small colonies, consisting principally
of coloured populations, the enforcement in proper cases of committal
for contempt of court for attacks on the court may be absolutely necessary
to preserve in such a community the dignity of and respect for the court."
In 1998, almost a century alter, the Privy Council reiterated this
opinion in its judgement in Gilbert Ahnee v. D.P.P., in an appeal
from the Supreme Court of Mauritius. The Law Lords reasoned that "in
England such proceedings are rare and none have been successfully brought
for more than 60 years. But it is permissible to take into account that
on a small island such as Mauritius the administration of justice is
more vulnerable than in United Kingdom. The need for the offence of
scandalising the court is greater on a small island."
The European Court of Human rights, in a narrow 5-4
decision in the Prager & Oberschlick case, adopted the public
confidence argument while upholding the charge of contempt. In 1997,
however, the European Court readjusted the balance in favour of freedom
of expression in the case of De Haes & Gijsels v. Belgium. In this case,
the European Court rules that ".. although Mr. De Haes' and Mr Gijsels'
comments were without doubt severely critical, they nevertheless appeared
to be proportionate to the stir and indignation caused by the matters
alleged in their articles. As to the journalists' polemical and even
aggressive tone, which the court should not be taken to approve, it
must be remembered that Article 10 protects not only the substance of
the ideas or information expressed but also the from in which they are
conveyed."
The U.S. Supreme Court's views are eloquently expressed
by Justice Black who wrote for the majority in 1941: "The assumption
that respect for the judiciary can be won by shielding judges from published
criticism wrongly appraises the character of American public opinion.
For it is a prized American privilege to speak one's mind, although
not always with perfect good taste, on all public institutions. And
an enforced silence, however limited solely in the name of preserving
the dignity of the bench, would probably engender resentment, suspicion,
and contempt much more than it would enhance respect". Lord Denning
in his celebrated ruling in 1968 in Quintin Hogg's case sounded
the death-knell of the contempt law. Lord Denning put it aptly: "Let
me say at once that we will never use this jurisdiction as a means to
uphold our own dignity. That must rest on surer foundations. Nor will
we 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 at stake. It is
no less than freedom of speech itself." In the High Court of Australia
C.J. Griffiths said, " I am not prepared to accede to the proposition
that an imputation of want of impartiality to a judge is necessarily
a contempt of court."
H.M. Seervai observed that " it would be surprising
that Lord Chancellor Bacon could be impeached for taking bribes and
deprived of the Office in the 1620s, but a judge of Supreme Court in
the 1970s could not be dealt with likewise on complaints made in good
faith to persons in authority." This author finds his opinions to be
bracketed with the valued opinions of Lord Denning, Justice Black and
Amua Sekyi on the issue of Contempt of Court Law.
