Examining the Adam Harris contempt charge
(Reproduced from Caribbean Impact)
Kaieteur News
January 28, 2007
Vivian M. Williams is a West Indian and American trained attorney who has Masters of Law degrees in Intellectual Property and Media Law, and Comparative International Law. He has more than 10 years experience as a journalist.
A major news story developing in Guyana is the charges brought against Kaieteur News Editor, and veteran journalist Adam Harris. Harris was slapped with contempt of court charges after being summoned before Justice B.S. Roy on January 11. The charge stems from an article written by Harris with the caption “When the Court Legalizes an Illegality”. The charge against Harris is significant because of the chilling effect it is likely to have on the press if Harris is convicted.
One of the allegations against Harris, according to press reports, is that he sought to bring the court into contempt and obstruct the course of justice and its fair administration. Details have not been provided as the basis for this allegation, which screams for attention.
The first point to note is that merely criticising a ruling of the court does not rise to the level of contempt and the obstruction of justice. If the essence of the article at issue is that the ruling of the court has the effect of making an act or omission that under the law constitute an illegality, into something that is legal then, Harris has done what good journalists and legal commentators are supposed to do.
Though his interpretation of the law may be incorrect he is entitled to comment on matters of law in a pending case, quite distinct from commenting on matters of fact.
To find Harris in contempt of court for reporting that the judge's decision in effect legalized an illegality it has to be first shown that Harris imputed some corrupt motive, manipulation of the facts by the court, some kind of bribery or misconduct designed to manipulate the outcome of the case.
If what was actually reported is that the Judge in the case was downright wrong in his interpretation of the law and categorization of the complained of conduct, then Harris is well within the boundaries of freedom of press.
All over the world, in democratic societies, judges are being accused of legislating from the bench, that is to say, making laws that have not been passed by the legislature, and failing to enforce laws that are on the books. The court's response has always been that its decisions are based on its interpretation of what is law and what is not law.
So if one judge says that something is law and a legal commentator says that he is wrong is that contempt of court? Ever so often, lower-court judges are told by appellate-judges that their decisions are inconsistent with the law. This is a nice way of saying that a judge has either held something legal that is in fact not legal or has ruled that something that is legal is illegal.
Another allegation against Harris is that he has scandalised the court and brought the entire administration of justice into disrepute. Again, this allegation cannot be supported by merely stating that Harris accuses a judge of legislating from the bench, or giving a decision that is far removed from what the law is.
If that is the case then press freedom and judicial accountability are in serious trouble in Guyana. A reason why cases before the court are opened to the public, and judges are usually required to give written decisions is so that their decisions may be scrutinized and commented upon by members of the public.
The preservation of judicial accountability requires robust criticism of the decisions made by the courts, so long as the courts are not unduly accused of corruption, nepotism, and the like. Legal commentators therefore, are well within bounds in stating that a particular decision of the court is inconsistent with law and justice.
As the Harris case unfolds the press should pay keen attention to how the court distinguishes between criticism of a decision of the court and ridicule of the court or a sitting judge. The fundamental issue is whether Harris criticised a decision of a judge or whether he ridiculed a sitting judge.
Adam Harris is well known for his modest brand of journalism, and his well mannered and level-headed personality. As much as the complaint against him would have shocked those who know Harris, I am appalled by the pleadings against Him.
For instance, he is accused of “prejudicing the minds of the public against a party in a case which has not been finally heard and determined”. It should be made clear that this allegation could only stand the test if it is shown that Harris commented on matters of fact in the case. If the article at issue was restricted to matters of law then its prejudicial value to the public is irrelevant because the public (jury) does not rule on matters of law. The jury's work is restricted to factual issues.
A comment as to the legality of an act or omission is a matter of law not fact, to be decided by a judge not a jury.
Another apparent troublesome allegation against Harris, at least the way it is quoted in the press is that he “commented on the proceedings in a pending civil action and purported to put forward a defence which was then not on the court's record”. The way this allegation is framed poses a real threat to press freedom since it suggests that a legal commentator cannot comment on a pending case.
In truly democratic societies with entrenched judicial accountability, the restriction on the comment on a pending case only pertains to matters of fact. The whole notion of judicial accountability collapses if the press cannot comment on matters of law.
Accusing Harris of putting forward a defence that is not on the court's record is bothersome. What constitutes a defence is a matter of law not fact. It is therefore, strange that a journalist would be charged with contempt for reporting on what he thinks is an available defence given the facts and circumstances of the case.
The journalist may not report on a fact that is on the record but he ought to be free to comment on possible defences, regardless whether they have been raised in the case. The journalist may go further, and criticise the defence team for not raising all available defences.
The trial is not affected in this way because, if a defence has not been raised by a party to the litigation, then it will not form part of the court's decision. The point, being made here is that the journalist must limit his reports to the facts on the record but is not bound to limit his comments on the legal issues in a pending case to those actually raised in the case.
If this is what Justice Roy is putting forward in the Harris case then, a conviction for Harris will be an extraordinary blow to press freedom and judicial accountability.
Justice Roy is accusing Harris of conveying to the public the impression that the orders granted by the court were based on considerations other than settled legal principles. If a legal commentator cannot challenge the legal basis for the decision of the court then upon what principle judicial accountability rests?
If Harris is guilty of contempt for arguing that the court's decision does not rest upon settled legal principles then all lawyers should be charged with contempt of court because when lawyers appeal decisions of the court they essentially argue that the decision is inconsistent with settled legal principles.
Lord Denning has issued a strong statement in condemnation of judges who use contempt of court charges to shield themselves from criticism and accountability. He urged that criticism of judges should be as robust as criticism of the executive branch of government. The accusation against Harris therefore, raises frightening concerns as to the extent to which judges in Guyana will use judicial authority to shield themselves from criticism and chill the free press.
Criticism of the decisions of a judge could be robust and fierce without compromising the authority, and integrity of the court. Where the authority and integrity of the court is brought into disrepute the issue of scandalizing may be present, but all criticisms of orders of the court do not rise to the level of scandalising the court.
It is difficult to accept the view that a challenge to the legal principle upon a decision of the court amounts to scandalizing the court. In a democracy with entrenched judicial accountability and press freedom, legal commentators should be left free to argue that the court is wrong without being cited for contempt.
The test for contempt based on scandalizing the court should involve a showing that the moral fabric of the court is being attacked by malicious and false accusations of misconduct on the part of an officer of the court.
If Harris attacked the correctness of the court's decision but did not impute any form of misconduct by the judge then he should walk free of his contempt charges.
Note: The contempt was discharged on Tuesday following a published apology by Mr. Adam Harris.