Law
alter views
Freedom
of expression and contempt of court: A critical analysis
A.H.Monjurul
Kabir
Freedom
of expression and the free flow of information, including
free and open debate regarding matters of public interest,
even when this involves criticisms of individuals, are
of crucial importance in any democratic society. They
are key to personal development, dignity and fulfilment
of every individual, as well as for the progress and welfare
of society, and the enjoyment and other human rights and
fundamental freedoms.
Freedom
of expression is not, however, absolute. Every system
of international and domestic rights recognises a carefully
drawn series of restrictions on freedom of expression,
taking into account the overreaching values of individual
dignity and democracy. Such restrictions include, for
example, prevention of obscenity and racial and ethnic
hatred, and the protection of personal reputation and
public safety. Article 29 of the Universal Declaration
of Human Rights specifies: In the exercise of his rights
and freedoms, everyone shall be subject only to such limitations
as are determined by law solely for the purpose of securing
due recognition and respect for the rights and freedoms
of others and of meeting the just requirements of morality,
public order and the general welfare in a democratic society.
Towards
International jurisprudence and standards
The major international and regional human rights instruments
on civil and political rights--the International Covenant
on Civil and Political Rights (ICCPR), the European Convention
on Human Rights (ECHR), the American Convention on Human
Rights (ACHR), and the African Charter on Human and People's
Rights (ACHPR) -- all protect both freedom of expression
and the administration of justice. Freedom of expression
is protected in Article 19 of the ICCPR as follows:
Everyone
shall have the right to hold opinions without interference.
Everyone
shall have the right to freedom of expression; this right
shall include freedom to seek, receive and impart information
and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or
through any other media of his choice.
The
administration of justice, particularly the right to a
fair trial and the presumption of innocence, is protected
in Article 14 of the ICCPR, which states, in part:
All
persons shall be equal before the courts and tribunals.
In the determination of any criminal charge against him,
or of his rights and obligations in a suit at law, everyone
shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law.
The press and the public may be excluded from all or part
of a trial for reasons of morals, public order (ordre
public) or national security in a democratic society,
or when the interest of the private lives of the Parties
so requires, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity
would prejudice the interests of justice; but any judgement
rendered in a criminal case or in a suit at law shall
be made public except where the interest of juvenile persons
otherwise requires or the proceedings concern matrimonial
disputes or guardianship of children.
A
more precise legal standard is articulated in Article
19(3) of the ICCPR. Under that article, restrictions on
freedom of expression may only be legitimate if they are
"provided by law and are necessary: (a) For the respect
of the rights and reputations of others; (b) For the protection
of national security or of public order (ordre public),
or of public health or morals"
Permissible
interference vis-à-vis contempt of court
Any such interference must be prescribed by law. This
implies that the law is accessible and 'formulated with
sufficient precision to enable the citizen to regulate
his conduct.' Second, the interference must pursue one
of the legitimate aims listed in Article 19(3). Third
the interference must be necessary. This implies that
it serves a pressing social need, that the reasons given
to justify it are relevant and sufficient and that the
interference is proportionate to the legitimate aim pursued.
This is a strict test, which presents a high standard,
which any interference must overcome.
Unfortunately,
some judicial bodies being the ultimate guarantor of rights
fall short in overcoming this test when it comes to offences
related to contempt of court. The offence of contempt
of court continues to be used by the courts across the
world to gag offensive critique. Even in England, where
the last successful prosecution for scandalising the court
was brought in 1931, as David Pannick asserts, "There
can be little doubt the bringing of such prosecutions
had an inhibiting effect on newspaper and magazine reporting
of judicial affairs generally…the continued existence
of the offence, and the memory of successful prosecutions,
inhibits journalists, who wrongly suspect that they have
a legal obligation to speak respectfully and cautiously
when discussing the judiciary"(David Pannick, Judges,
Oxford University Press, 1987, p.110.).
Defining
contempt of court
Any wilful disobedience to, or disregard of, a court order
or any misconduct in the presence of a court; action that
interferes with a judge's ability to administer justice
or that insults the dignity of the court; punishable by
fine or imprisonment or both. There are both civil and
criminal contempts; the distinction is often unclear.
A
judge who feels someone is improperly challenging or ignoring
the court's authority has the power to declare the defiant
person (called the contemnor) in contempt of court. There
are two types of contempt - criminal and civil. Criminal
contempt occurs when the contemnor actually interferes
with the ability of the court to function properly - for
example, by yelling at the judge. This is also called
direct contempt because it occurs directly in front of
the judge. A criminal contemnor may be fined, jailed or
both as punishment for his act.
In
Attorney- General v. Leveller Magazine Ltd., Lord Diplock
identified a common characteristics of different forms
of criminal contempt by saying: My Lords, although criminal
contempts of court may take a variety of forms they all
share a common characteristic: they involve an interference
with the due administration of justice, either in a particular
case or more generally as a continuing process. It is
justice itself that is flouted by contempt of court, not
the individual court or judge who is attempting to administer
it (1979 AC 440, 449).
Civil
contempt occurs when the contemnor wilfully disobeys a
court order. This is also called indirect contempt because
it occurs outside the judge's immediate realm and evidence
must be presented to the judge to prove the contempt.
A civil contemnor, too, may be fined, jailed or both.
The fine or jailing is meant to coerce the contemnor into
obeying the court, not to punish him, and the contemnor
will be released from jail just as soon as he complies
with the court order. In family law, civil contempt is
one way a court enforces alimony, child support, custody
and visitation orders, which have been violated.
However,
many courts have realised that, at least regarding various
procedural matters such as appointment of counsel, the
distinction between civil and criminal contempt is often
blurred and uncertain. It is often said that there is
a distinction between 'civil' contempt and 'criminal'
contempt, although no one appears able to state the distinction
precisely and it is conceded generally that the distinction
is of little practical significance. The distinction between
'civil' and 'criminal' contempt is no longer of much importance,
but it does draw attention to the difference between on
the one hand contempts such as 'scandalizing the court',
physically interfering with the course of justice, or
publishing matters likely to prejudice a fair trial, and
on those other contempts which arise from non-compliance
with an order made, or undertaking required in legal proceedings.
In
fact, in many jurisdictions, contempt of court appears
to be a strange element of law, which is both unclear
and anomalous.
Breadth
of contempt
The sheer breadth of contempt contributes greatly to the
confusion and non-transparency surrounding this offence.
Geoffrey Robertson and Andrew Nicol list five types of
contempt: Strict-liability contempt (completely unintentional
prejudicing of the legal proceedings by publishing material
on an 'active case'), deliberate contempt (directly influencing
legal proceedings e.g., by placing unfair pressure on
a witness or a party to proceedings), scandalising attacks
on the judiciary (making false and 'scurrilous' attacks
on the judiciary), jury deliberation (publishing accounts
of how jurors reached their verdict), disobedience to
and order of the court (disobeying an order of a court
to postpone reporting or suppress evidence).
Contempt
in the face of the court, which is directed at the judiciary
or other personnel and constitutes behaviour other than
speech, or speech that has crossed over into overt acts
would mostly fall outside the reach of any ordinary doctrine
of free speech, irrespective of any other protection to
which it may be entitled. This point merits emphasis because
the distinction must be drawn between contempt involving
and not involving free speech considerations is often
blurred. To recognise and evaluate the problem inherent
in a system of legal free speech, a strict and almost
hermetic distinction must be maintained between speech
(whether conveyed by mouth, in writing, or by technological
means) and overt action.
The
description of 'contempt of court' no doubt has an historical
basis but it is nonetheless most misleading and confusing.
In fact, the law does not exist, as the phrase 'contempt
of court' might misleadingly suggest, to protect the personal
dignity of the judiciary nor does it exist to protect
the private rights of parties or litigants. Lord President
Clyde commented in Johnson v. Grant: The phrase "contempt
of court" does not in the least describe the true
nature of the class of offence with which we are here
concerned …
The
offence consists in interfering with the administration
of law; in impeding and perverting the course of justice
… It is not the dignity of the court which is offended
a petty and misleading view of the issue involved it is
the fundamental supremacy of the law which is challenged
(1923 SC 789 at 790 cited with approval inter alia by
Lord Edmund-Davies in A-G v. Leveller Magazine Ltd. 1979
AC 440 at 459).
Contempt
of court and free expression
The laws of contempt are primarily designed to balance
the freedom of expression with the judiciary's attempt
to maintain its authority and safeguard public order.
Broadly speaking, contempt of court is of three kinds:
I) violation of an order of a court, II) interference
in the judicial process and III) criticism of a judge,
his judgement, or the institution of the judiciary.
Lord
Russell CJ defined the 'offence of contempt of court'
as " any act done or writing published calculated
to bring a court or a judge of the Court into contempt,
or to lower his authority." However, Lord Russell
explained, "that description of that class of contempt
[scandalising the court] is to be taken subject to one
and an important qualification. Judges and Courts are
alike open to criticism, and if reasonable argument or
expostulation is offered against any judicial act as contrary
to law or the public good, no court could or would treat
that as contempt of Court." As eloquently pronounced
by Lord Atkin, " Justice is not a cloistered virtue:
she must be allowed to suffer the scrutiny and the respectful
even though outspoken comments of ordinary men.(Ambard
v. Att.-Gen. for Trinidad and Tobago,1936 AC 322, 355
(PC).)"
In
the Anglo-Saxon countries, it is the institution of contempt
of court that always been the most important means of
protecting the prestige of the administration of justice
and the dignity of the personalities involved therein.
The protection afforded individual officers, especially
judges, is invariably based and justified on the protection
of the institutions of the administration of justice.
The rationale behind the contempt law is an abiding British
fear of 'trial by newspaper' of the sort that often disfigures
major trials in America, where the First Amendment (The
First Amendment to the US Constitution states, "Congress
shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of
the people peaceably to assemble and to petition the government
for a redress of grievances.") permits the press
to comment directly on matters involved in litigation.
American judges also do not accept the argument that public
confidence in their authority and in the fair administration
of justice will necessarily be shaken by hostile comment.
The public interest in freedom of expression has been
accorded a clear preference over the public interest in
securing fair trials and any constraint on such freedom
are permissible only to the extent that they constitute
a clear and present danger to the administration of justice
(Nebraska Press Association v. Stuart 1976 427 US 539).
It is the truth of the comment, not the mere fact that
it is made, which may undermine such confidence; and if
the remarks are true, the public should certainly be allowed
to digest them.
Contemporary
jurists, such as Geoffrey Robertson and Andrew Nicol,
describe the offence of scandalising the court in England
as "…an anachronistic relic of eighteenth-century
struggles between partisan judges and their vitriolic
critics" Eric Barendt adds that the offence of scandalising
the court is "now so unimportant in practice that
it may appear fruitless to spend much space in debating
its justification."
Given
the inherent vagueness and elasticity of almost all formal
speech restrictions and especially speech restriction
in the legal arena there would, as far as criminal sanctions
are concerned, be an obvious temptation to use the sanction
against unpopular people with dissenting views. The obvious
tendency, in such cases, towards invocation of sanctions,
would not be what was said but by whom it was said. Leading
contempt cases in the leading contempt jurisdictions of
the world reflect this reality heavy stress put on the
protection of legal institutions with a corresponding
underselling of the interests of the civil libertarian
rights of the public and individuals.
Contempt
and freedom of discussion
Another aspect of contempt that deserves special mention
is that which operates to protect the fairness of trials
and to maintain the authority of the courts. Although
there is a public interest in doing this, the rules thereby
imposed also impede and ultimately conflict with another
public interest, namely freedom of discussion. Freedom
of discussion is an important public interest for as Lord
Simon stated in A-G v Times Newspapers Ltd.: People can
not adequately influence the decisions, which affect their
lives unless they can be adequately informed on facts
and arguments relevant to the decisions. (1974 AC at 315).
The
continuing growth of media and its crucial role in consolidating
democracy calls for greater scrutiny of somewhat restrictive
nature of contempt laws. This is not to say that the media
should interfere an ongoing trial and thereby may cause
a potential harm to the fairness of trials. As Lord Denning
MR once said: 'the press plays a vital part in the administration
of justice. It is the watchdog to see that every trial
is conducted fairly, openly and above broad ...But the
watchdog may sometimes break loose have to be punished
for misbehaviour.' (Lord Denning, Road to Justice, 1955,
p.78).
The
famous formulation by Jordan CJ in Ex parte Bread Manufacturers;
Re Truth & Sportsman Limited [29] bears repeating:
It is of extreme public interest that no conduct should
be permitted which is likely to prevent a litigant in
a court of justice from having his case tried free from
all matter of prejudice. But the administration of justice,
important though it undoubtedly is, is not the only matter
in which the public is vitally interested; and if in the
course of the ventillation of a question of public concern
matter is published which may prejudice a party in the
conduct of a law suit, it does not follow that a contempt
has been committed. The case may be one in which, as between
competing matters, the public interest in the possibility
of prejudice to a litigant may be required to yield to
other and superior considerations.
Few
critical points to ponder
1.The term 'contempt of court' is misleading and inconsistent
with the notion of democracy and human rights.
2. The distinction between civil and criminal contempt
is often blurred and uncertain. Given the inherent vagueness
and elasticity of almost all formal speech restrictions
and especially speech restriction in the legal arena in
the form of contempt there would, as far as criminal sanctions
are concerned, be an obvious temptation to use the sanction
against unpopular people with dissenting views.
3. Heavy stress put on the protection of legal institutions
with a corresponding underselling of the interests of
people. Clearly this is not consistent with international
standards.
4. The concerns for the protection of administration of
justice are often vague and overemphasised at the cost
of freedom of expression.
5. The offence of scandalising the court continues to
be used by some of the the courts across the world to
quieten offensive critique. The courts of law, the ultimate
guarantor of free expression, have found it difficult
to come to terms with free speech critically directed
at the courts themselves.
A.H.
Monjurul Kabir, a human rights advocate, is a governance
& human security specialist.
