What is con­tempt?

Con­tempt of court is a sub­ject in which re­stric­tions and lim­its are open to a con­sid­er­able amount of sub­jec­tiv­ity when de­ci­sions are made.

The Star Malaysia - Star2 - - ISSUES - BHAG SINGH

EV­ERY now and then, some­one will threaten an­other with con­tempt pro­ceed­ings. Most peo­ple who have some idea of the sub­ject will know that be­ing found in con­tempt of court could re­sult in a per­son be­ing fined or even im­pris­oned.

Some­times there is a ten­dency to con­fuse con­tempt with the sub ju­dice rule. The Con­cise Dic­tio­nary Of Law de­scribes the sub ju­dice rule as a rule lim­it­ing com­ment and dis­clo­sure re­lat­ing to ju­di­cial pro­ceed­ings, in or­der not to pre­judge the is­sue or in­flu­ence the jury.

This is be­cause sub ju­dice refers more to the sta­tus of the pro­ceed­ings or the mat­ter. On the other hand, con­tempt is made up of words or state­ments that may in­flu­ence or prej­u­dice the out­come of a par­tic­u­lar mat­ter.

The com­mon law def­i­ni­tion of con­tempt of court is, ac­cord­ing to Bower LJ in Hel­more v Smith, an act or omis­sion cal­cu­lated to in­ter­fere in the due ad­min­is­tra­tion of jus­tice.

Our law of con­tempt has its roots in English Law. Un­der the English Com­mon Law, the of­fences un­der the law were ei­ther the cre­ation of po­lit­i­cal process in that they were cre­ated by the ex­ec­u­tive or the leg­is­la­ture. Oth­er­wise it is said the law has been the re­sult of in­cre­men­tal cus­tom­ary devel­op­ment.

In our coun­try, the power of con­tempt is con­ferred by statute. It is also recog­nised as be­ing within the in­her­ent ju­ris­dic­tion of the courts. Yet nowhere is con­tempt de­fined. This al­lows a wide dis­cre­tion for the judge in ex­er­cis­ing con­tempt ju­ris­dic­tion.

Wrong­do­ing

Some acts clearly dis­close them­selves as con­sti­tut­ing con­tempt. Di­rect in­ter­fer­ence with court pro­ceed­ings would be con­tempt. So would any­thing done to in­flu­ence or in­tim­i­date a judge or wit­nesses or for that mat­ter, de­ter a lit­i­gant. This would be in­ter­fer­ence with due ad­min­is­tra­tion of jus­tice.

So, too, is dis­obey­ing the ex­press or­ders of the court or scan­dal­is­ing the judge as it would lower the court’s dig­nity and ad­versely im­pact the ad­min­is­tra­tion of jus­tice. An­thony Ar­lidge and David Eady in the Law Of Con­tempt states its devel­op­ment in three stages.

“First of all there were per­sons be­ing pun­ished for speak­ing dis­re­spect­fully of the court on ser­vice of process. Then the stage was reached where mat­ter scan­dal­is­ing the court con­sti­tuted a con­tempt when­ever pub­lished. Fi­nally the courts be­gan to pun­ish per­sons who pub­lished mat­ters cal­cu­lated to prej­u­dice the fair trial of the pend­ing cause.”

Con­tempts that fall into the first two cat­e­gories are easy to com­pre­hend. How­ever, the third cat­e­gory poses a greater chal­lenge. This is es­pe­cially so when it comes to the com­mis­sion of crimes and their dis­cus­sion be­fore the judge has had the op­por­tu­nity to de­cide.

In ear­lier times, pub­lic dis­cus­sion of a pos­si­ble crime was very re­stricted. In 1742 in the case of Roch v Gar­van, Lord Hard­wick com­mit­ted the printer of the St James Evening Post for pub­lish­ing li­bel against wit­nesses in a mat­ter pend­ing be­fore a court. He was wary of the im­pact of the press and stated the ju­di­cial re­sponse to the grow­ing in­flu­ence of the press at that time:

“Noth­ing is more in­cum­bent upon courts of jus­tice than to pre­serve their pro­ceed­ings from be­ing mis­rep­re­sented. Nor is there any­thing of more per­ni­cious con­se­quence than to prej­u­dice the minds of the pub­lic against per­sons concerned as par­ties in causes be­fore the cause is fi­nally heard.” Whilst scan­dal­is­ing the court such as ridi­cul­ing judges or in­tim­i­da­tion of those in­volved is clearly taboo, it is more dif­fi­cult to draw the line where the con­tempt pub­lished has the po­ten­tial to in­flu­ence the out­come. Or it may seek to pre­judge the is­sue, thereby usurp­ing the ad­ju­di­ca­tion func­tion of the court.

Lim­its of per­mis­si­bil­ity

Half a cen­tury ago, a lo­cal pub­li­ca­tion car­ried a re­port of an ac­ci­dent, and it urged the po­lice to pros­e­cute the driver of the car in­volved in the ac­ci­dent. It was said that the driver of the car was driv­ing above the speed limit and there was ev­i­dence of brake marks on the road. The ar­ti­cle was held to be in con­tempt.

How­ever, over the years there has been more dis­cus­sion of hap­pen­ings, es­pe­cially when per­son­al­i­ties are al­leged to be or at least sus­pected of be­ing in­volved. This leads read­ers to con­clude, at least in their minds, on the guilt or oth­er­wise of those re­ferred to. Is such me­dia ex­po­sure for bet­ter or worse?

The more lib­eral at­mos­phere to­day may per­haps be at­trib­uted to a more ed­u­cated and in­formed pub­lic, and the fact that as ju­ries are no longer de­cid­ing, a judge is bet­ter trained and placed to deal with such mat­ters de­spite me­dia cov­er­age. It may also be at­trib­uted to the be­lief that pend­ing lit­i­ga­tion or pros­e­cu­tion is not just be­tween the par­ties in­volved but af­fects so­ci­ety as a whole. There­fore so­ci­ety has a right to know what goes on.

Ac­tual sce­nario

The fact re­mains that the even­tual de­ter­mi­na­tion of whether ac­tion for con­tempt ought to be taken or whether a court will hold a per­son in con­tempt is al­ways very flex­i­ble, and re­liance on it may vary from time to time and place to place.

In EVB Kotte Air, the Nag­pur High Court re­fused to make a find­ing of con­tempt and went on to say: “Courts, no doubt, have to be jeal­ous to guard against any in­ter­fer­ence with their func­tions, but on the other hand, they should not be too sen­si­tive where no harm has been caused or was in­tended to be caused.”

The flex­i­bil­ity of its ap­pli­ca­tion is to be found in a state­ment that the law re­lat­ing to con­tempt of court is lit­er­ally what the judges wanted to make of it. Oth­er­wise the judges were able to adapt the Law of Con­tempt to suit the prob­lems which they faced.

This state of the law has been ac­knowl­edged from time to time. Even the Phillimore Com­mit­tee, in its con­clu­sion, has said that the law as it stands con­tains un­cer­tain­ties which im­pede and re­strict rea­son­able free­dom of speech. It should be amended and clar­i­fied by statute to al­low as much free­dom of speech as is con­sis­tent with the ob­jec­tive to main­tain the rights of the cit­i­zen to a fair and unim­peded sys­tem of jus­tice.

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