Dr Bipin Adhikari
The hotly debated Contempt of Court Bill has been recently sent to the parliament for referral. It has generated a lot of opinions with politicians, rights activists and others highly critical of the proposed provisions of the bill. The stakeholders critical of the provisions have argued that the provisions of the bill is contrary to the right of freedom of speech/expression. Further, the much contended bill is accused of curtailing other fundamental rights such as Right to Fair Trail etc.
In Schering Chemicals v Falkman (1981) AllER 321 it was propounded that “The Freedom of the press is extolled as one of the great bulwarks of liberty…But it is often misunderstood..it does not mean that the press is free to ruin a reputation or to break a confidence or to pollute the course of justice or to do anything that is unlawful…the press is not above the law.” In light of this backdrop, the newly presented bill is come into contention as regards to the relationship between the judiciary. On the one hand, press is the fourth pillar of democracy which acts as a watchdog over executive, legislature and judiciary. The draft bill exempts judiciary from any criticism. Sections of the media have held their reservations towards the new bill by stating that if the proposed bill that is now in the parliament is passed without any amendments, just about anyone might be charged with ‘contempt of court’ on flimsiest of ground. According to media representatives, attempts to curb the limited cautionary role of media in the name of ‘contempt of court’ is dangerous for the health of our nascent democracy.
Contempt of Court, commonly referred to as “Contempt” is the offense of being disobedient to or disrespectful to court of law and its officers in the form of behavior that opposes or defies the authority, justice, and dignity of the court. Contempt of Court is a concept deeply rooted in judicial systems in most of the jurisdictions around the world. Traditionally, there are essentially two kinds of contempt of court, i.e. civil contempt and criminal contempt. This has been acknowledged in the Contempt of Court Bill, 2071. Similarly, when a court decides that an action constituted contempt of court, it can issue a court order declaring a person or an organization “held in contempt”. Subsequently, a judge may impose sanctions such as a fine or jail for someone found guilty of contempt of court. The bill also defines insulting a staff or judge of the court as contempt of the court and proposes discretionary powers for judges to initiate a case with the punishment ranging from a fine up to Rs. 10,000 or a jail-term up to a year or both. In addition, experts have welcomed the provision to hold even the judges in contempt under certain circumstances. This provision makes it clear that no one due to his/her position in court could be excluded from incurring liability. The Bill does not prevent fair and truthful publication of information, however, any misleading or any publication which undermines the judiciary is restricted.
In light of this, there have been some suggestions to make the bill more in tune with the international standards. Firstly, there is a need to define and differentiate between criminal cases and those related to civil disputes and provide for each differently in different sections and sub sections. Secondly, there is a need for a categorization of different levels of contempt of court much akin to the legal avenues propounded in other common law countries such as UK and India. Also, it is suggested that it might be better to include the Office of the Attorney General in Amicus Curieu. Similarly, experts have advocated for the court, defined in detail and semi-judicial and tribunals, to also be included in the contempt bill draft. However, referring to the Irish Law Commission’s report, it might be better not to incorporate contempt of court related provisions in semi-judicial or tribunals.
Some of the recommendations for the amendment of the bill are as follows:
a) Section 4: Shall be deemed to be contempt of court. Sub-section “Ga” and “Cha” should be merged into one to avoid confusion.
b) Section 4: Subsection “Cha” states that it will be deemed contempt if anyone enters closed-door court proceedings without permission. This seems a bit harsh and should be scrapped from the draft bill.
c) Section 6: Contempt of court proceeding could be brought against Judges. This section needs to be elaborated to identify scenarios or circumstances that can be identified as constituting contempt from judges.
d) Section 4 (d) provides excessive protection to judges and could inhibit the media from exposing instances of judicial corruption. Similarly section 4(h) says that media houses can be charged if they publish any information on restricted cases. But it has not defined on what grounds the court can restrict cases. Under these rules, this column would be considered a contempt of court.
e) Section 16: The provision barring a right to appeal, under decisions given in compliance with Section 14, is contrary to the fundamental right enshrined in the constitution.
f) Section 19: On facilitation for court to seek counsel from Nepal Bar Association. It has been recommended that the service should be provided to both parties to comply with the principle of natural justice.
g) Section 20: Drafting of a procedural code to implement contempt of court. The provision for enactment of “procedural code” to supplement the bill should be replaced by “Rules” in order to incorporate a wider array of enforcement materials.
h) Labor Act, 2048: Section 72- Labor court has jurisdiction to hear a contempt case or give contempt order. This should be incorporated in the Contempt Bill as it intends to become umbrella legislation for all contempt cases in Nepal.
i) Kanoon Byawasahi Parishad Ain, 2050- Section 24(2) guarantees the rights of law practitioners against contempt charges for words or actions spoken or done during a hearing of case. This provision needs to be included in the contempt of court bill.
j) Administration of Justice Act, 2048: Section 29 Files, documents or replies on cases demanded by the Court to be sent- Provisions to empower court to start proceedings on the chief or employee of the concerned office in case of failure of deliver of files, documents or replies should be included in the contempt bill.
k) Section 13: Punishment. Sanctions of one year jail sentence or NPR 10,000 seems too harsh according to experts. It should be decreased to 3 months jail sentence and NPR 5,000 compensation. Further, Section 13 must be reviewed. The objective of the Contempt of Court Act should be to uphold the authority and impartiality of the courts, but this is not protected or commanded. Rather it is earned by safeguarding the fundamental rights of citizens. The role of media is to expose biased verdicts with evidence, not to protect the dignity of court. The respect towards judiciary and justices must come spontaneously; they shouldn’t seek enforced silence from the media.
Experts have been highly critical of the lack of provisions for right to appeal in the current bill. Right to Appeal is a fundamental human right recognized by the Constitution and, thus, should be incorporated in the contempt bill. Similarly, experts are of the belief that contempt bill should also uphold another fundamental right of Right to Fair Trial. There are certain provisions contrary to the aforementioned fundamental right and it is suggested that the bill should be in conformity with the fundamental right. On the other hand, experts have argued that the bill does not in fact necessarily curtail the right to appeal in cases of contempt. Rather, according to him, the bill under Section 16 opposes remission which can be made clear through modification of the wording. Also, there is a need to create a judiciary able to overcome adversities. In terms of media, an independent media is the key to independent judiciary and both should to work hand in hand to create conducive atmosphere to uphold the rule of law. In such a regard, both have certain rights and responsibilities that they need to conduct with due diligence to optimize the efficiency of the judiciary.
Furthermore, the current bill is urgent more so for the benefit of the press rather than the judiciary. In light of democratic developments, the move to promulgate the much needed bill is much welcomed by the legal fraternity. The provisions esp. sec 4 “gha” which defines what constitutes contempt has been deemed inadequate. According to experts, the definition under Sec 4 is vague and there should be amendment to make it more concise and coherent. Moreover, the definition should exclude “any other act” in the definition to avoid ambiguity. Similarly, judges need to introspect and ascertain their duties and responsibilities in light of the growing need to create a trustworthy relationship between the citizens and the court. Also, there needs to be balance between the independence of the media and obstruction to justice and court procedures. This bill should provide adequate balance between the two forces of the state rather than create a power struggle between the judiciary and the media.
In any democratic framework, the judiciary can be subject to the same level of scrutiny as the parliamentary and executive branches. Journalists must be accountable for what they write but shouldn’t be threatened by justices in the name of maintaining the dignity of the judiciary. They must own respect. I am pretty sure that unlike many others who want the Bill to be pulled down, this Bill should go ahead with these changes. There is nothing in the Bill which shows that the Bill is seeking forceful respect through the new act.
