My attention has been drawn to an article written by I. K. Gyasi on page 5 of the Monday October 6, 2008 edition of your newspaper. By way of rejoinder I state as follows:
I do not know whether or not Mr. I. K. Gyasi is a lawyer. If he is not, then he may be pardoned for the views he has expressed. If however he is indeed a lawyer, then I can only quote for his benefit portions of the response given by Mr. Fui Tsikata (a respected former lecturer of law), to a similar article written by the same MR. I. K. Gyasi in the Daily Graphic of the same date titled “Watch these things, Tony Lithur”.
“Mr. I.K. Gyasi, in his letter published in the Daily Graphic of Monday, 6 October 2008, advises Mr. Tony Lithur to go back to law school because Tony holds the view that it is not wrong to comment on a case pending on appeal.
Mr. Gyasi is rather the one who needs to improve his education on what the law says about the right to comment on cases, even those that are pending. If he is sufficiently computer literate, I recommend that he reads the note at www.myjoyonle.com titled “Nii Osah Mills was right”, by Kwame Mfodwo of Monash University Law School.
At the end of his note, Mfodwo cites the words of respected judges from different common law countries. Two of those quotations are enough to show just how wrong Mr. I.K. Gyasi is.
It is already forty years since Lord Denning said:
“It is the right of every man, in Parliament or out of it, in the Press or over broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice.
They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not… We do not fear criticism, nor do we resent it. For there is something far more at stake. It is no less than freedom of speech itself.” It is more than sixty years since Mr. Justice Black, of the US Supreme Court said:
“But we cannot start with the assumption … that, to preserve judicial impartiality, it is necessary for judges to have a contempt power by which they can close all channels of public expression to all matters which touch upon pending cases.”
One interesting outcome of Tsatsu's case is the exposure of double standards being applied by all manner of people who have hitherto been putting themselves out as principled advocates of democratic values.
Lawyers who have been commenting even on cases that they themselves are handling all of a sudden have “discovered” that there is a prohibition against comment on pending cases.
Others have sought to use that supposed prohibition as a fig leaf to escape the demand for (and, indeed, censor or censure) comment on judicial conduct which should, by any honest assessment, be a source of worry to anybody who is genuinely concerned about decent behaviour in our society.
The questions I would like to ask Mr. Gyasi are the following: in his private conversations, is he one of those (of whom there are many claiming to be respectable citizens) who think that Tsatsu deserves to be in prison, not because he is guilty of the matters on which he was charged, but because he was associated with the PNDC and the NDC?
Has he looked at the transcripts of the proceedings of 18 June 2008? Does he think Mrs. Abban's conduct as revealed by those transcripts meets the minimum standards to which judges should adhere?
Does he think that she was right to decide on whether or not she was disqualified by bias from hearing his bail application - in the face of the statement from the young man who heard her say, on 19 June 2008 (before she had seen the application), that she would not grant him bail?
It is already more than fifteen years since Mr. Justice Brennan said in the High Court of Australia that “public comment fairly made on judicial conduct that is truly disreputable (in the sense that it would impair the confidence of the public in the competence or integrity of the court) is for the public benefit.”
As long ago as 1911, Chief Justice Griffiths said in the same court: “if any Judge of this Court or of any other Court were to make a public utterance of such character as to be likely to impair the confidence of the public, or of suitors or any class of suitors in the impartiality of the Court in any matter likely to be brought before it, any public comment on such an utterance, if it were fair comment, would, so far from being a contempt of Court, be for the public benefit…””
I have noticed that Mr. I. K. Gyasi has quoted something from Mr. Ansah-Asare in support of his piece. For the view of the law expressed therein, I can only say “hmmmmmm!” If, however, after reading the pieces written by Kwame Nfodwo and Mr. Fui Tsikata, Mr. I. K. Gyasi feels sufficiently liberated from the shackles of the principle of sub-judice, then may I, very respectfully, invite him to comment on the events of 18th June, 2008, the day Mrs. Justice Henrietta Abba sent Tsatsu to jail? Do they meet the minimum standards of fair trial and judicial conduct? Please indulge me. Yours faithfully Tony Lithur