This paper places a crosshair on the Judiciary of Liberia. The law extant in Liberia is that matters that are considered sub judice are not subject to discussion by lawyers or the general public. Even general criticism of the Courts in Liberia has resulted in contempt charges.
The Honorable Supreme Court of Liberia has held persons in contempt for expressing their views on cases that were pending in the Honorable Courts.
This paper seeks to illuminate the contradiction between the fundamental rights of freedom of expression as enshrined in the 1986 constitution of Liberia and the doctrine of sub judice as a case law espoused in the holdings of the Supreme Court of Liberia.
Sub judice in Latin means “Under the Judge.” It is a legal doctrine that prohibits the discussion of cases pending in a court.
In Liberia, the Supreme Court has held persons in contempt for discussing the substance of cases that are pending.
Furthermore, the Supreme Court has also held, newspapers, journalists in contempt for publications and other statements the Court considers disparaging.
The Court has reasoned that discussing the merit of cases could undermine the end of substantial justice by influencing the decisions of judges and justices.
Similarly, in the case IN RE: CONTEMPT PROCEEDINGS AGAINST MR. RODNEY SIEH, EDITOR-IN-CHIEF OF THE FRONT-PAGE NEWSPAPER, the Honorable Supreme Court of Liberia held Journalist Rodney Sieh in contempt for carrying a story written to the editor regarding a case that was pending on appeal at the Supreme Court. (Rodney Sieh Front Page [2011] LRSC 10)
The letter to the editor accused one of the Associate Justices in person of Justice Glady Johnson of already taking a position in the case because she made a statement that the Supreme Court will reveal the records to ascertain where the lower court made an error and correct the error on appeal.
This opinion maintains that obstructing the administration of justice by the courts through speech or press is an abuse of those liberties, such as will subject the person to punishment.
The abovementioned assertions bring both, freedom of speech & expression and sub judice into conflict.
On one side of the coin, freedom of fairly and reasonably criticizing judiciary increases its accountability but on the other side of the coin, the power of punishing contempt of court ensures free and non-obstructed administration of justice.
With such inherent power, one would wonder where the line should be drawn, as it relates to sub judice and freedom of expression.
And what constitutes obstruction of the administration of justice, is it a mere press release or statement that poses no clear and present danger?
Or is it a statement made against a member, or the entire bench which they considered offensive?
Is the Court authority to hold people in contempt for commenting on matters before it supersedes a citizen’s right to freely express his/herself as proscribed by our constitution?
We answer in the negative, it is a constitutional right of a citizen to disagree and, if he cares to, express such disagreement, with a decision of the Court.
Article 15 of the 1986 Constitution of Liberia states “that every person shall have the right to freedom of expression.” It states that right encompasses the right to hold opinion without interference, the right to freedom to speech, the right to academic freedom. It asserts further that the right shall not be curtailed, restricted, or enjoined by government save during an emergency declared under this Constitution or freedom may be limited only by judicial action in proceedings grounded in defamation or invasion of the rights of privacy and publicity or the commercial aspect of expression in deception, false advertising, and copyright infringement. (Emphasis supplied). (1986 Constitution of Liberia Article 15)
If people cannot comment on matters while they are ongoing what good, or public interest will it serve when the matter has come to its finality? It’s nothing but a mere commentary.
“The Supreme Court of Liberia is a branch of the government of Liberia, encompassing its third branch. The Court cannot by judicial decree, rule or process in any way restricts the right of a citizen of Liberia to express or the right of the press to publish said expression.” (Rodney Sieh Front Page [2011] LRSC 10)
“Therefore, in any instance where an official of government is offended by the fundamental speech by a citizen or publication by the press, the only proper course prescribed under our Constitution is a suit in defamation.” Contemnor continues.
Contemnor Sieh averred that the constitution proscribed remedy in a suit against the writer and perhaps the publisher for defamation. In no way can the Supreme Court of Liberia circumvent that process by a Sua Sponte motion to cite the publisher for contempt.
“The power to haul individual citizens from the public street who are not party litigants to any case or matter before the Court or who are not officers of the Court (such as lawyers, judges or other judicial officers) when they are exercising rights under the Article 15 of the Constitution of Liberia is simply beyond the contempt powers, either explicit or implied, of the Supreme Court of Liberia,” (Rodney Sieh Front Page [2011] LRSC 10)
The Judicial Canon sixteen in pertinent part says that a judge should not be apprehensive of unjust criticisms. (JUDICIARY CONNON 16 REPUBLIC OF LIBERIA)
The sub judice rule appears to have been formulated for a time when the regulation of information was a knowable and controllable process.
Not only are the sources of information now diffused and largely unable to be regulated, but the impact of the information, because of the multiplicity of its sources, also is evolving.
Sub Judice as a Shield for public officials
Interestingly, public officials are using this common law doctrine to shield themselves from being accountable to the ordinary people through the press.
“No comment-the matter is before the courts.” How often does this statement accompany the media report of a dispute involving a public authority? How often is this response heard to a journalist’s question to a public official about a matter of public concern? (Crystal and Sossin 2013)
In our view, to preclude the government from communicating to the public about matters of public importance would seriously undermine the accountability of government.
We suggest that the rule is invoked too broadly in some contexts and too narrowly in others.
It is invoked too broadly where the mere existence of litigation is used as a justification by government officials for refusing to address an issue in the media. Taken to its logical conclusion, this would preclude government responses to almost every question.
“The purpose of this species of contempt is to maintain public confidence in the administration of justice. In doing so, this must be reconciled with the principle that “speech should be free, so that everyone has the right to comment on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong-headed” (Gallagher v Durack (1983) 152 CLR 238, 257)
A concurring opinion of the Alberta Court of Appeal decision indicated a “public interest” exception to the rule. Based largely on the defense to sub judice contempt available in the Australian case law, Justice Berger framed the public interest exception as follows:
“No finding of publication contempt shall be made if the alleged contemnor establishes on a balance of probabilities that the decision to publish was taken in good faith to inform the public of a legitimate, compelling and pressing issue of public importance and if objectively assessed, the issue is properly so characterized.” (Crystal and Sossin 2013)
Because the sub judice rule necessarily implies a limitation on the freedom of expression of the media and individual journalists or both, the rule should theoretically reflect a balance between the constitutional rights to freedom of expression and the protection of a fair trial (and, by extension, the open courts’ principle).
The trend is clearly toward permitting more publicity and greater coverage of the criminal justice system.
If the media seeks an account by the government for its actions, the existence of litigation should not act as a shield against such accountability.
Public criticism of the Court
It was rightly said by John Milton that for establishing any liberal society it is necessary to give citizens the right to freely express their views and opinions. It acts as a precursor for the smooth conduct of any democratic society.
Freedom of speech and expression also includes the right to criticize any government institution.
It is to be noted that the right to freedom of speech and expression includes freedom of the press within its ambit, though not expressly.
The press plays a role to present the opinion of the public to the superior authorities, including criticisms of such authorities. Through such criticism, the answerability of such authorities increases.
Every authority is a subject for public scrutiny wherein the general masses openly and freely criticized the performance and doings of the authority.
The Judiciary should also be open for public scrutiny wherein the people and the press have the right to comment and criticize any judicial act.
In the case In re C. Abayomi Cassell, the Honorable Supreme Court of Liberia held Counselor Cassell in contempt for speaking against the Court and had him disbarred from practicing law in Liberia.
“A person is charged with contempt in making certain utterances or publishing writings may not ordinarily escape liability therefore by merely invoking the constitutional guarantees of freedom of speech and press.” (In re Cllr. Abayomi Cassell [1979] LRSC 9; 28 LLR 107 1979)
The Supreme Court went further that as a constitutional court, it has the inherent power to punish for contempt and to determine what constitutes contempt of the Court.
“The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and the enforcement of the judgments, orders, and writs of the courts, and consequently to the administration of justice.” (In re Cllr. Abayomi Cassell [1979] LRSC 9; 28 LLR 107 1979)
The moment the courts were called into existence they were vested with jurisdiction over any subject, they became possessed of this power.
It is to be understood that free and open criticism increases the accountability of the judiciary towards people. It is widely affirmed that in any democratic society people are supreme.
There is no wrong to tag people as the master in a democratic setup wherein all other authorities like Legislature, Judiciary, Executive, etc. are the servant of the master.
Criticism helps the authorities to know where they are lacking in performing their duties and such criticism act as a catalyst for the proper conduct of the country.
But unfortunately, people do not feel that free to criticize the judiciary because of the fear of getting charged with contempt of court.
This act gives unjust power to a court of law to punish any such act which tends to devalue the authority of the judiciary. They have the right to punish any criticism no matter how beneficial it could be for the judiciary for improving its workings.
The continuous use of such power undermines scholarship in the legal profession and stands in the way of change.
The Supreme Court should be respected not by the usage of contempt power on its citizen for critiquing but the quality of its rulings and/or opinions.
This paper posits that the judiciary should not be above reproach. In as much as the other two branches of government are subjected to criticism, newspaper reportage, and other publications, the Judiciary should be no different.
The mere idea that a particular branch of government’s action will be thoroughly scrutinized places some level of pressure on the officials of that branch of government to do the right thing. Corruptions and other integrity violations have been exposed by the media or by the public.
This paper takes the position that freedom of speech as enshrined in the 1986 Constitution must be interpreted with expansive deference and that the doctrine of sub judice is in stark violation of the fundamental rights of free speech.
Any attempt to curtail or restraint such a fundamental right must be backed by compelling state interest and the means used should be narrowly tailored and least restrictive.
The assertion that the discussion of pending cases will influence jurors and judges is not supported by logic. Cases at the courts are decided by evidence.
As Justice Lamer notes courts should believe in the ability of jurors to obey their oath and not be influenced by pretrial publicity. (Dagenais v. Canadian Broadcasting Corp. 1994 CanLII 39 SCC),
“Accused persons have a right to an impartial jury, but not an uninformed jury,” Justice Lamer.
Judges are schooled in the law and should not be wary of being influence by discussions or opinions from the public.
Justice Black speaking on behalf of the US Supreme Court in the case Bridges v California says “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”. Bridges v. California, 314 U.S. 252 (1941)
The doctrine of sub judice as a practice by Courts in Liberia should be invoked from a broader perspective as opposed to its current use as a shield.
This paper postulates that the judiciary should be subjected to criticism and the public must be allowed to discuss pending cases at courts since those cases may have a particular correlation with the day-to-day happenings of the country.
A better Liberia is possible!
References
- Beef producers slam Ottawa over BSE cases CBC News · Posted: Mar 31, 2010
- Constitution of Liberia 1986: http://www.liberlii.org/cgi
bin/disp.pl/lr/cases/LRSC/1961/22.html?stem=0&synonyms=0&query=%22sub%20Judice%22
- Ossin et al 2013. “A Comment on “No Comment”: The Sub Judice Rule and the
Accountability of Public Officials in the 21st Century.” Dalhousie Law Journal 36.2 (2013): 535-580.
- Bridges v. California, 314 U.S. 252 (1941) https://supreme.justia.com/cases/federal/us/314/252/
- 138. Edmonton Sun trial, supra note 28 at para 17.
- 139. R v Chenier, supra note 67 at para 17