In 1941, the US Supreme Court declared that contempt proceedings violated freedom of expression, a fundamental right guaranteed by the American constitution. Justice Black observed, “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”.
In the United Kingdom, Lord Denning expressed the same reservations in 1968, “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 writer of the Malaysiakini article makes the following observation that is shared by most Malaysian lawyers that I have spoken to:
“The tendency of judges to favour the government has been growing unchecked. They have suffered, until a couple of days ago, under the yoke of their political masters. And so we have been inflicted with judges whose attitude is, ‘don”t rock the boat’. This class of ‘don’t rock the boat’, persons are those who are best seen in sensitive government cases or in election petitions.”
The quality of judges has never been tested against an objective standard (yet). In the US confirmation hearings are held. In the UK there are public procedures put into place – judges are required to sit for qualifying exams. In both these jurisdictions, the ability, experience and integrity of the judge are held up for public examination/scrutiny. Not so in Malaysia nor in Singapore. This must fundamentally change.