Contempt of Court: A colonial legacy


Nabil Ahsan

 -The writer is practicing Barrister and lecturer of Legal Studies.

THE phrase “contempt of court” is becoming a household term, courtesy of headline news of journalists being asked to appear before the court on accusation of contempt of court. The latest incident is that of Mr. Mizanur Rahman Khan, who appeared before a bench of the Supreme Court of Bangladesh on charges of contempt of court for writing an opinion article in the daily Prothom Alo.
The justification for having strict laws for contempt of court can be best understood if one fully appreciates how courts assert authority over the citizens of a sovereign state. The judiciary headed by the Chief Justice of Bangladesh is effectively a very small institution comprising of a few hundred judges spread all over the country. It does not have its own police force, to enforce each and every order and judgement passed by a court. From a constitutional standpoint, the power of the courts is derived from the constitution itself and the chief justice is the vanguard of the judiciary. On a practical note, the courts function on the presumption that majority of the people will voluntarily obey the order of a court. The voluntary obedience towards the courts stem from an ‘internal recognition’ by the citizens that courts are legitimate institutions of a state to enforce justice.
There is both a legal and a moral dimension of the concept of court system that commands this respect of the people. The notion of contempt of court arms the court with the power to compel those individuals who are not voluntarily obeying an order of the court, or to defend itself against malicious attacks which are calculated to harm the image of the judiciary in the eyes of the common people.
Contempt of court can broadly be categorised as (i) civil contempt, for example, wilfully flouting or violating an order of the court or (ii) criminal contempt, which may include (a) interference with the administration of justice, for example, commenting on a matter which is at present being heard by a court of law (the rationale being that the right to fair trial of any party thereof may be adversely affected) or (b) scandalisation of the court, which may be committed by making adverse comments about a particular judge or the legal system in general.
There is not much dispute about the first category of contempt stated above; it is commonplace and contempt petitions against defendants or respondents are filed every day when any party fails to comply with the direction of the court. However, it is the second category, in particular contempt by scandalisation of court, which may be causing discomfiture within the journalist and civil society community from time to time. There is an apparent conflict between the notion of contempt by scandalisation and the fundamental right to freedom of press and freedom of speech as enshrined in our constitution.
The essential question is, should citizens have the right to question the way our courts function or to make comments about how a particular judge conducts himself in his capacity as a judge? It is accepted that academic criticisms following accepted norms and etiquettes and when written from an objective standpoint are acceptable. Also, fair criticism of the conduct of a judge may not amount to contempt if it is made in good faith and in public interest. But journalists or other lay persons not belonging to the legal community may not always know the art of academic criticism. They may end up writing something or saying something which is not rightly phrased or may be factually or legally inaccurate, or may be confusing and self contradictory. But should the courts take cognisance and react every time this happens? The following lines from a judgement of the Ontario Court of Appeal reflect the position in most developed countries: “As a result of their importance the courts are bound to be the subject of comment and criticism. Not all will be sweetly reasoned. An unsuccessful litigant may well make comments after the decision is rendered that are not felicitously worded. Some criticism may be well-founded, some suggestions for change worth adopting. But the courts are not fragile flowers that will wither in the hot heat of controversy…. The courts have functioned well and effectively in difficult times. They are well-regarded in the community because they merit respect. They need not fear criticism nor need to sustain unnecessary barriers to complaints about their operations or decisions.” (per Cory JA, in R V Koptyo, (1987), 62 OR (2d) 449.)
In the sub-continent the attitude towards contempt is usually stricter. It is perhaps a reflection of the colonial thought process. This is lucidly summed up in a judgement of the Privy Council as early as 1899: “Committals for contempt of Court by scandalizing the Court itself have become obsolete in this Country (meaning England). Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalising to them. But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper case of committal for contempt of Court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity of and respect for the Court.” (Per Lord Morris in McLeod V ST. Aubyn, 1899 AC 549.)
Times have changed; we are now a free and sovereign nation with an independent Supreme Court whose legality is not rooted in ‘gunpowder’ but in the will of the people, which is clearly manifested in our Constitution. Perhaps, at this point of time, it is not really necessary for the court to react every single time someone throws in a few words at it. The general public opinion should be an effective means to filter out the unscrupulously worded or inaccurately framed comments, whether inadvertent or not. Perhaps self-restraint should be the order of the day!