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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 189
May 14, 2005

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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.


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