Law Alter Views
Contempt
of court or contempt of judge?
An
American perspective
Ashok
K. Karmaker, Esq.
Very
common in common law countries is respect for court and
judges. But courts in civil law countries such France,
Germany and many others judges are mere officials like
other officials of different branches of the government.
Judges do not command extra or higher respects than other
officials. And in no society do they confuse court with
judges. Judges are not court, but a part of the court
as government is not the state but a part of it. Obviously
judges comprise the most vital part of the judiciary.
America
has its own legacy of legal system from common law family.
In America judges are the most respected people as it
is true with the British. But here judges seem to be less
sensitive and afraid of maintaining their own dignity
from the hands of the media, press and others. Other than
in case of disobeying the order of the court and certain
inappropriate behaviours in the court room nobody can
hear of any issuing of any contempt of court rule. That
does not mean nobody criticise the judges and their decisions
but truth is that judges are more tolerant about that.
Here judges are being criticised more often than not.
Remember Democratic Presidential candidate Al Gore's conceding
speech began with the words, inter alia, that though he
"strongly disagreed" with the decision of the
Supreme Court's decisions he "accepted" that.
Surely, the Supreme Court of the USA did not sit next
day to issue a contempt of court rule against this brilliant
man.
The
question arises are the judges of the Supreme Court of
America so dumb that they could not dare protecting their
dignity from the hands of a defeated presidential candidate?
No the Court did not do a favor to him, rather did the
right thing doing that because they took the oath of protecting
the constitution. Protecting constitution comes first
before their so-called self dignity. Protecting the constitution
and constitutional right of free speech and freedom of
thought and press freedom are much more important than
shielding the American judges from criticism. Who did
recognise that at first? Obviously, the learned judges
of America themselves. They know that their dignity is
better protected when they do not criminally abuse and
misuse their power that the constitution bestowed on them
and confided with them. That's why they are so respected.
And
it should not escape our notice that the term refers to
"contempt of court" not "contempt of judge".
The contempt of court has been defined as [T]he deliberate
obstruction of a court's proceedings by refusing to obey
a court order or by interfering with court procedures.
As I said before judges are not synonymous with court.
An individual judge can do wrong but not the whole judiciary.
In America judges do not falsely think that they themselves
are the court, but they are part of it. Court comprises
of judges, lawyers, jurists, juries, staff and, above
all, general people.
In
America some people admire the decisions of the courts
when others admonish, when some commend others condemn.
A democratic society and institution does take both commendation
and condemnation equally. Say for example, many conservatives
who opposed the disconnecting the tube from Terri Schiavo,
who died on Thursday March 31, 2005, condemned the decision
of the judges as "judicial homicide" and some
politicians like Republican leader Tom DeLay commented
that "judiciary has gone too far" in this case
and he opined that legislature should see that in future.
No court, no judge came forward with any contempt proceedings,
not the parents of the judges.
Even
judges themselves are not happy with the notion of court's
interference in every matter. Justice Scalia, who is seen
as replacement for the current Chief Justice in case he
becomes unable to perform his duties, condemns this notions
saying, "If you think aficionados of a living Constitution
want to bring you flexibility, think again,…[W]hy
in the world would you have it interpreted by nine lawyers?"
Under
the constitution only person who is immune from being
sued for any criminal activity is the President. But look
here too, the President enjoys that immunity as long as
he retains the Presidency but not after that. That means
as soon as he relinquishes power as the President he must
stand trial for such criminal activity done during or
before his presidency. Noteworthy, even during his presidency
the President does not enjoy any immunity from criticism.
Anyone can criticise him for his activity and no one can
be held liable committing contempt. If so is the case
with the first person of the country no other person,
whoever he/she is, cannot shield himself/herself behind
the screen to avoid public scrutiny. Higher the position
higher the responsibility.
Even
in such a society many jurists and academics are there
who would not like the judges holding so much power. They
are called departmentalists. The departmentalists view
that
While
the Supreme Court has the power to decide constitutional
questions, the other branches of government have that
power too. As long as the other branches do not disregard
a specific order from the court, they have no obligation
to accept what the Supreme Court says. …The departmentalists'
most famous manifesto is Abraham Lincoln's First Inaugural
Address. Lincoln acknowledged that the parties to the
Dred Scott case had to comply with the court's ruling.
But he insisted that the ruling had no effect beyond that.
The other branches could adopt, and act on, a different
view of what the Constitutions aid about slavery. Lincoln's
administration treated blacks as citizens, even though
the Supreme Court had held that they were not, and Lincoln
brought about the abolition of slavery in the District
of Columbia and in the territories, even though Dred Scott
had ruled that the federal government lacked that power.
The
departmentalists consider that the courts have not done
the right thing all the time in history-"[f]or every
Brown v. Board of Education declaring segregation unconstitutional,
there is a Dred Scott decision expanding the constitutional
protection of slavery, or a Lochner decision striking
down important regulatory or welfare legislation."
Under
the constitution of the USA only the President enjoys
immunity from being prosecuted criminally. That means
anyone; even judges of the Supreme Court of USA can be
prosecuted for any offence they are being accused of.
What happens if a judge is being accused of any crimefirst,
like any other democracies, they will step down until
and unless they are being declared innocent. Why? Because
judges are being held in high esteem and a standard much
higher than others. Therefore, any issue that might cast
shadow of doubt on their integrity would certainly compromise
their ability, in the eyes of public, to perform their
duties efficiently. It is so because the courts are to
ensure not only justice is being done but also to show
that.
It
might sound unbelievable that the USA has only nine judges
in its Supreme Court. And it is any one's guess how difficult
it could be to ascend to that position and what a respect
to retain the same. But they are not beyond criticism.
One of the judges is Honourable Clarence Thomas. This
judge has been lambasted as a "handkerchief-head,"
a "chicken-and-biscuit-eating Uncle Tom," "a
little creep," and a "youngest, cruelest justice".
But we are yet to hear any contempt proceedings drawn
against any of those name callers. Thanks to American
democracy.
The
author is a US Attorney practising in New York.
