In his book, “The Due Process of Law”, at page 6, the great Lord Denning, recounts a delightful story.
“On every Monday morning we hear litigants in person. Miss Stone was often there. She made an application before us. We refused it. She was sitting in the front row with a book-case within her reach. She picked up one of Butterworth’s ‘Workmen’s Compensation Cases’ and threw it at us. It passed between Lord Justice Diplock and me. She picked up another. That went wide too. She said, ‘I am running out of ammunition’. We took little notice. She had hoped we would commit her for contempt of court – just to draw more attention to herself. As we took no notice, she went towards the door. She left saying: ‘I congratulate your Lordships on your coolness under fire’.”
Of course, in our Federal Court recently, shoes went a-flying towards the Bench rather than books.
When I first read about the shoe-throwing incident in our Federal Court, my first reaction was to think, why wasn’t the shoe-thrower arrested and made to answer a contempt charge? To my mind, the act of throwing shoes at the Judges was surely contemptuous. And for the Court to let it be, without taking any action against him scandalises the Federal Court. Even worse than that, other people, including some disgruntled lawyers in the future might choose to do the same after having seen a precedent being set where the culprit was left scot free. Frankly, I myself, have had the discomforting thought of throwing my bags at some Judges before.
Later I read that a police report was lodged against the Jimmy Shoe. Then yesterday, I read that Mr Shoe-go-lucky was summoned to the Court to answer a contempt charge. The same Judges sat to hear the contempt proceeding, found him guilty and sentenced him to 12 month jail.
In passing the sentence, Federal Court Justice Suriyadi was reported to have said:
"You hold a religious position which is held in high esteem by the public. However, you showed characteristics of being barbaric and violent.
"You showed disrespect to the court."
(Full report is here.)
The power of the Court to punish contemptuous act was first laid out by Wilmot J in R v Almon in 1765. Such power, according to Wilmot J, was necessary to vindicate the authority of the Court. It was a power which forms the foundation of the Court as an institution.
It was therefore thought that the power to commit people for contempt of Court was an incidental power of the Court in order to protect the dignity and authority of the Court.
In modern democracy, it has been argued that such view is obsolete. It is now argued that the necessity to protect the dignity and authority of the Court as stated in R v Almon rested on the premise that in the olden days, the Court was an appurtenance of the King, from whom the Court derived its powers. Thus, protecting the dignity and authority of the Court was anomalous to protecting the King’s dignity and authority.
This position, in a modern democracy, is of course not applicable anymore as in a democracy, the Court, just like any other machinations of the State, derives its dignity and authority from the people.
Being so, it is now argued thus:
“In a democracy, on the other hand, it is the people who are supreme, and therefore they are the superior entity, while all State authorities (including Judges) are inferior entities, being the servants of the people. Hence in a democracy there is no need for Judges to vindicate their authority or display majesty or pomp. Their authority will come from the public confidence, and this in turn will be an outcome of their own conduct, their integrity, impartiality, learning and simplicity. No other vindication is required in a democracy by Judges, and there is no need for them to display majesty and authority.” (Contempt of Court: The need for a fresh look - Justice Markandey Katju ,Judge, Supreme Court of India).
The whole premise of the power to punish for contempt of Court in modern times have therefore been substantially changed. While the power was said to exist for the vindication of the Court and protection of its dignity and authority before, currently the power is held to protect the administration of justice instead.
In AG vs. BBB (1980) 3 All ER 161 (170), Lord Salmon said:
“The description `Contempt of Court’ no doubt has a historical basis, but it is nonetheless misleading. Its object is not to protect the dignity of the Courts but to protect the administration of justice.”
Even as early as 1968, in R vs. Commissioner of Police (1968) 2 QB 150 Lord Denning found it necessary for the Court to break away from the notion that it was protecting its own dignity or authority. His Lordship stated:
“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 important at stake. It is no less than freedom of speech itself.”
The most telling part of Lord Denning’s judgment in that case, however, is this:
“All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.” (emphasis is mine).
Many of us will remember the Spycatcher case. It’s official name is Attorney General v. Guardian Newspaper 1987(3) All.E.R. 316. What happened there was Peter Wright, a former spy, wrote a book, entitled The Spycatcher, chronicling his days as a British spy. The government took an injunction against the book. The case went up right to the highest Court in Britain, the House of Lords. In a 3-2 majority decision, the House of Lords granted an injunction against the publication of the book for national security reason.
The next day, some newspapers published pictures of the 3 majority Judges upside down with the caption “YOU FOOLS.”
One of the three Judges in the majority decision, Lord Templeman, was asked why contempt proceeding was not initiated against the newspapers. He just smiled and was quoted as saying:
“Judges in England did not take notice of personal insults. Though he believed he was not a fool, others were entitled to their opinion.”
It is quite obvious that now that the power to punish contemptuous acts is not utilised to either vindicate the Court or to protect its authority. Nor is it used to instil respect to the Court.
In current days, the Court vindicates itself by being independent, by coming up with highly stimulating and intellectual analysis of the facts and the laws in cases before it and by determining cases judiciously, far from being bias and without fear or favour. Respect and awe for the Courts are no more foisted unto the people by exercising the might of judicial power such as imposing a 12 month imprisonment on a lay person who appeared in Court without any legal Counsel fighting against Counsel for various government agencies. In fact that might work negatively.
One striking aspect of yesterday’s proceeding is the fact that all three Judges, at whom the shoes were thrown, sat to hear the contempt charge and proceeded to sentence the contemnor.
Admittedly, the act was contemptuous. And admittedly too, the three Judges have the power to hear the contempt case and sentence the contemnor.
Justice must not only be done, but also must be seen to be done. This judicial pronouncement has been so frequently mentioned so much so that it has become a legal maxim of sorts.
In my humble opinion, and I say this with the greatest of respect to Federal Court Justices Zulkifli Makinuddin, Suriyadi Halim Omar and Zaleha Zahari (for whom I have the greatest of respect), it would have served the above maxim far better in the public eye if her Ladyship and their Lordship had recused themselves from sentencing the contemnor or even from hearing the contempt charge by themselves.
The shoes were thrown at their Ladyship and Lordships personally. It is not only the Court or the Bench which was insulted (and perhaps attacked) by the contemnor. Their Ladyship and Lordships themselves, personally and individually, were attacked and insulted. Surely, in the eye of the people, the Judges involved cannot say with an amount of credibility that no emotion or personal feeling was involved in the conviction and subsequent sentencing of the contemnor.
Perhaps Lord Denning’s story at the beginning of this article could serve all of us with some food for thought.
By the way, the title to this article is part of an old English proverb which goes like this:
For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the message was lost.
For want of a message the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.
Wikipedia explains that the proverb “describes a situation where permitting some small undesirable situation will allow gradual and inexorable worsening.”
Can we learn something from this proverb?
Perhaps we can.