Provisioning punishment for contempt of court is one of the ways to make justice delivery pure, unbiased and effective. Providing for punishment for contempt of court is not to make a security shield for the judge but for the protection of the law itself. Nepal does not yet have adequate clear laws to encourage the people’s faith in the court or to prevent any activities that might hamper the honor of the court. The Constitution and the judicial administration Act only has provisions for action against and punishment for contempt of the Supreme Court and other courts. In cases of contempt of court the Supreme Court and other courts are still deciding like countries practicing common law do in terms of exercise, legal practice and prior decision.
In these changing times it is not enough to deal with cases of contempt of court just through common practices and court exercises. It is therefore clear that the Bill made to establish the proposed Act related to Contempt of Court 2067 has been drafted inorder for there to be a separate law to treat cases of contempt of court like in countries practicing common law. The bill is being evaluated here because it is necessary to discuss the positive sides of the bill as well as its inadequacies.
Reviewing decisions regarding contempt of court in Nepal till date it can be seen that such judicial decisions have not been made keeping all sides of the contempt in mind. While some cases may be seen to be ideologically high others lack any ideological basis. Therefore there is a need for a separate act to maintain a clear perspective and procedural uniformity to deal with cases of contempt of court. Current values respected around the world must also be included in the proposed bill regarding contempt of court. Inorder to give the bill a completion examples from other countries must be taken into account.
Contempt of Court: definition
Article 4 of the proposed bill (will be called Bill after this) has defined contempt of court accordingly:
Shall be considered contempt of court: If anyone indulges in or makes anyone else indulge in or encourages anyone else to indulge in the following shall be considered contempt of court –
a. creating a hurdle in the courts work of carrying out justice, or not allowing any of the courts decisions to be implemented or trying to knowingly disobeying the courts orders, delaying such orders or do something to delay such orders
b. attempting to wrongly influence cases, work or decisions that are still being heard in court, trying to dishonor the faith people have in the court, attempting to create wrong impressions in the people of the court and its judicial work, publishing wrong information or expressing wrong views regarding the court
c. Scolding, embarrassing, physically assaulting, or degrading through any other dishonourable behaviour the judges involved in the judicial cases
d. Falsely accusing, dishonouring, the court or the judge on decisions, orders, or any other activities of the court
e. Knowinly not fulfilling the conditions, commitment or bail given to the court during the judicial process without any justification
f. Physically assaulting, scolding, dishonouring any court employee, legal practioner, witnesses, alabies during a court hearing
g. entering the closed door court hearing without permission from the court
h. publishing details and accounts of cases that the court forbids to publish
i. recording video tapes or video materials of the court hearing or the activities of the judge involved in the hearing without prior permission from the court
In the above mentioned definitions it is clear that courts in Nepal are attempting to incorporate ideas related to contempt of court. It can also be seen that the scope/region is being widened. However the definition does not stil include everything as clearly as possible.
Contempt of court is an act that devalues the rights of the court and dishonours justice and the courts prestige. The court can be dishonoured by anyone; individuals related to a case being heard in court, legal practitioners, investigators, court officials and employees, witnesses, individuals named in the cases, or any other person. Even the judges could be involved in contempt of court either inside or outside the courtroom. The contempt might even be from a legal entity or an organization.
Contempt of court is when hurdles are created in the works of the court. But the courts order must be according to law. If the order or the decision itself is against the law (unlawlful) it is not contempt of court to seek legal remedies or file cases for review. Likewise analyzing a decision of the court in a healthy manner and honorably disagreeing with the court by intellectual and investigative analysis is not contempt.
The primary purpose of contempt of court is to create a hurdle in the pure and effective judicial administration. Its direct impact on justice must be seen through actions conducted by an individual or an organization on the basis of clear and present danger. How the act was conducted, what was spoken, what was done, has special meaning here. Why and how was it conducted, what behavior was displayed must be watched. In this regard it can seen that while the intention factor may not be everything it is the central factor. However in some grave situations the intention factor remains minimal and contempt of court can be charged on the basis of harsh responsibility. This is mostly limited to criminal contempt. The individual who does the contempt is called the contemnor. However the following factors must be in the act of contempt:
1. disobeying/disregard for legal orders
2. the contemnor must know/be aware of the order
3. the act should not have been conducted or prohibited acts should not have been committed
4. act should have brought dishonour to the prestige of the court
Contempt of court is seen to be categorized according to type – direct and indirect and according to content – related to property division or criminal. Likewise it is also defined as full contempt or half contempt. In certain cases creative/constructive contempt also called consequential contempt has been defined differently where the resulting action is seen to be as disobeying the court order.
In cases of property dispute where contempt of court has been charged orders of the court are seen to be disobeyed. In cases related to the rights of an individual decisions made by the court to remedy the rights abuse, that are disobeyed or dishonoured can be defined as contempt. Criminal contempt is when the court is attacked or dishonorably scolded or any criminal activity conducted. Criminal contempt can also happen through property dispute cases. In cases of property dispute the two sides might act against each other. There the court might give prior orders to rehabilitate. Criminal contempt however becomes different from social and judical systems. In the former (cases related to property dispute) the contempt of the order or decision ends when the act is over. However in criminal contempt this is looked at differently. Criminal contempt has the following aspects:
• Offence of in Facie
• Scandalizing the Court
• Offence against Subjudice rule
• Offence interfares with the administration of Justice
Direct / Indirect contempt: Direct contempt is when it happens inside the court. This is also known as in facia curiae. Shouting in front of the bench, shouting or dishonouring the court inside the court premises, physically assaulting, attacking judges, legal practitioners, etc fall under this.
Acts conducted outside the court premises are considered indirect contempt. Trying to bribe a legal practitioner or a witness outside a court premise can also be considered indirect contempt. Publishing or disseminating humiliating materials or making such statements is also indirect contempt. Not helping court officials as required by the law, disturbing their work, registering unnecessary cases in court with the intention to make the court suffer is also contempt of court.
Thus the proposed act does not clearly differentiate between what criminal contempt is and what contempt on cases of property dispute is, or between direct and indirect contempt either, or even between constructive contempt and half contempt. All acts of contempt have been put in the same section and sub section.
Criticism of rights in relation to contempt of court
Legal experts have criticized the provision of giving judges the authority to give punishment for contempt of court. According to Earl C Dudley, a professor in Virginia University when doing this the powers of the victim, accused and the judge all mix up in the same platform which is a dangerous situation. Inorder to minimize this instead of allowing the same judge in whose bench the contempt occurred, another judge should hear the case of contempt of court. This takes into account the principle that justice cannot only be served but also must seen to be served. In terms of Nepal the same bench that has been dishonoured has the right to pass judgement regarding the contempt. There have been many questions raised in this matter. Therefore if possible another bench should hear the case.
The court is also accused of not following the legal procedure and announcing the punishment for contempt. According to them this is like putting the keys to the lock of the jail where one is locked inside ones own pocket. Or if the courts orders are obeyed there will be no punishment. -In re Nevitt , page117, -8th cir.1902). However this is still being protected by the judiciary and legal experts.
The following corrections are seen necessary to make the proposed bill related to contempt of court better:
Define and differentiate between criminal cases and those related to property disputes and provide for each differently in different sections and sub sections.
Differentiate between direct and indirect contempt and adopt due procedures like in the case of direct contempt. In cases of indirect contempt provisions should be made for the complaint to be filed by the office of the Attorny General or a government lawyers office and be acted upon. Although in cases of direct contempt the same bench has the authority to conduct the hearing in cases of indirect contempt a separate bench should conduct the hearing.
Instead of considering all levels of contempt as the same punishment should be different for different levels of court like in England and India.
It might be better to categorize contempt on the basis of clear and present danger
It might be better to include the Office of the Attorny General in Amicus Curieu
The court has been defined in detail and semi-judicial and tribunals are also included in the draft. Refering to the Irish Law Commission’s report it might be better not to incorporate contempt of court related provisions in semi-judicial or tribunals.
In cases of property disputes it might better to limit the scope and keep all issues that can be addressed through separate laws outside of the scope of contempt. For example in cases of refusal to abide by the court’s order it can be punished by a law separate from contempt of court law.
As contempt can also occur through cartoons this must also be included. The Supreme Court heard about this in the case of Harihar Birahi.
This investigative report and suggestion paper was prepared by Dr Ramkrishna Timalsina for the Nepal Constitution Foundation with inputs from women, indigenous peoples, Dalit, Madhesi, youth, and other representatives from other pressure groups. The Foundation is thankful to Krishna Kumari Gurung, Dr. Rajitbhakta Pradhanang, Manoj Kumar Chaudhary, Yam Bahadur Kisan, Sabita Baral, Sambojan Limbu, Madhav Tiwari, Rampukar Mahato, Phurpa Tamang, and Dr. Bipin Adhikari.
The research has been supported by The Asia Foundation. Views and opinions expressed in this report are of the authors and don’t necessarily reflects of the Asia Foundation.