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Thursday March 28, 2024

Contempt laws in Pakistan and around the world

By Sabir Shah
February 03, 2018

In every country of the world, there are two categories of contempt: being rude or disrespectful to legal authorities in the courtroom, or willfully failing to obey a court order, research shows.

Contempt includes showing disrespect for the judge or judges hearing the case, disruption of the proceedings through poor and uncalled for behaviour and publication or airing of certain material or even non-disclosure of material, all of which may jeopardize a fair trial.

Judges all over the world have been imposing fines and jailing people committing contempt of court for many decades, though it is relatively rare that a person is charged for contempt without first receiving at least one warning from the judge.

Let us now examine the contempt laws in some countries, including Pakistan: In its August 4, 2012 edition, “The News International” had reported: The Supreme Court of Pakistan struck down the Contempt of Court Act, 2012, after declaring it unconstitutional, void and and ruled that the Contempt of Court Ordinance 2003 shall be revived with effect from July 12, 2012.

On July 12, 2012, the then President Asif Ali Zardari had enacted the Contempt of Court Act, 2012, after the National Assembly passed it under Section 248(1), exempting all government office holders, including the prime minister and all other ministers, from court proceedings under contempt charges.

A five-member bench of the apex court, led by Chief Justice Iftikhar Muhammad Chaudhry and comprising Justice Mian Shakirullah Jan, Justice Khilji Arif Hussain, Justice Jawad S. Khwaja and Justice Tassadduq Hussain Jilani, had announced the judgment on 27 identical petitions challenging the act.

The court, in its 21-page short order, announced that the petitions were maintainable under Article 184(3) given that questions of public importance with reference to of fundamental rights were involved therein.

The court ruled that under Article 204 read with Entry 55 of the Fourth Schedule to the constitution, only the high courts and the Supreme Court had powers to punish any person found guilty for contempt of court falling within the definition of contempt of court given in Clause (2) of Article 204. “Section 2(a) of Contempt of Court Act 2012, which defines the word >judge= as including all officers acting in judicial capacity in administration of justice, is contrary to Article 204(1) as under the latter provision, the court means the Supreme Court or a high court,” says the short order, adding: “Section 3 of the act as a whole is void and contrary to articles 4, 9, 25 & 204(2).”

Giving the reasons, the court ruled that the acts of contempt liable to be punished mentioned in Article 204(2)(b) and some actions of contempt of court falling under Article 204(2)(c) have been omitted from the definition of contempt of court given in Section 3 of the act.

“Contempt of Court Act 2012 has been promulgated under Clause 3 of Article 204, which confers power on the legislature to make law to regulate the exercise of power by courts, and not to incorporate any substantive provision or defences as it has been done in the proviso,” the court ruled in its judgment.

The court observed that powers of the courts had been reduced by incorporating the expression >by scandalizing a judge in relation to his office= whereas in Article 204(2), the word >court= has been used. Similarly, the definition provided by Section 3 runs contrary to the provisions of Article 63(1)(g) according to which, if a person has been convicted/sentenced for ridiculing the judiciary, he will be disqualified to hold a public office, and in Section 3 this expression has been omitted and instead of institution of judiciary, scandalisation of a judge has been confined in relation to his office.

The short order further maintained that by enacting provisos (i) to (xi) to Section 3, immunities/defences have been provided, whereas no such provision exists in the constitution; and the proviso (i) to Section 3, which grants exemption to the public office holders mentioned in Article 248(1) from the contempt of Court is violation of Article 25 as under Article 204(2), the court is empowered to punish >any person= for its contempt without any exception.

“Incorporation of Article 248(1) in proviso (i) to section 3 is tantamount to amending the constitution, which cannot be done without following the procedure laid down in articles 238 and 239,” the short order ruled.

The judgment ruled that Article 248(1) had not granted immunity to any public office holders mentioned therein from any criminal proceedings, therefore, by means of proviso (i) to Section 3, no immunity can be granted to the public office holders in violation of Article 25.

“The terms and phrases used in provisos (i) to (xi) to Section 3 are ambiguous and absurd and are meant to give benefit to contemnors who have no respect for the judgments of the courts, therefore, the said provisos being contrary to the principle of equality before law are void,” says the judgment.

The court further ruled that under Sub-section (4) of Section 4, the effect of earlier judgments has been nullified by pronouncing a legislative judgment without removing the basis on which the judgments were pronounced, which is a violation of the fundamental right of access to justice as enshrined in Article 9 and this provision also runs contrary to Article 189; therefore, this provision is void. The court added that Section 6(2) was not sustainable because of declaration of Section 3 void as a whole.

Similarly, the judgment ruled that Section 6(3) encourages and promotes the commission of contempt of court by postponing cognizance of a contempt of court arising from an averment made in due course in appellate, revisional or review proceedings, till such proceedings have been finalised and no further appeal, revision or review lies, although to maintain the dignity and respect of the court, prompt action to punish the contemnor is called for.

“As any delay in this behalf will not only erode the dignity, but would also promote the tendency of disrespecting the courts and their orders, therefore, this provision being contrary to the principle of independence of judiciary and access to justice as enshrined in articles 2A and 9 is void,” says the short order.

The court further maintained Section 8 relating to transfer of proceedings was tantamount to curtailing the judicial powers. Sub-section (1) of section 8 is not sustainable because instead of the phrase >scandalising the court=, the expression >scandalising a judge in relation to his office= has been used. “This subsection also runs contrary to the recognised principle of punishing any person who is guilty of contempt on the face of the court where a prompt action to maintain the dignity of the court is called for,” says the short order.

The court ruled that transfer of proceedings from one judge and bench to another was the prerogative of the chief justice as the administrative head of his court, which could not be controlled by the legislature, therefore, Sub-section (3) of Section 8 is violation of the principle of independence of judiciary.

The court maintained that under Sub-section (5) of Section 8, the legislature could not exercise power of transferring a case from the file of the chief justice to next senior judge as it would be against the independent functioning of the court and legislative interference in this behalf was tantamount to undermining the authority of the chief justice and other judges as well. As such, this provision too is not sustainable.

The judgment further ruled that Section 10(b) was a violation of fundamental rights of freedom of speech and expression enshrined in Article 19, which is subject to a reasonable restriction, inter alia, in relation to contempt of court and Article 68, which provides that no discussion shall take place in parliament with respect to conduct of a judge of the Supreme Court or a high court.

“By means of Article 270(AA), the Contempt of Court Ordinance, 2003, which was promulgated on December 15, 2003, continued in force till July 12, 2012, the day on which Contempt of Court Act 2012 was promulgated. In enacting section 13, which repeals Contempt of Court Act 1976, and the ordinances of 2003 and 2004, no reason has been assigned for the repeal of the same,” says the short order.

The court ruled that after having found various provisions of Contempt of Court Act 2012 as ultra vires the constitution, >we are of the opinion that the remaining provisions of the impugned legislation, if allowed to stay on the statute book, would serve no purpose particularly, when it has been held that repealing section itself is a nullity; therefore, the principle of severability as applied by this Court in Mehram Ali vs Federation Pakistan (PLD 1998 SC 1445) and Dr Mobashir Hassan=s case is not attracted=.

“Thus, having been left with no constitutional option, Contempt of Court Act 2012 is declared unconstitutional, void and non est, as a consequence whereof, following the dictum laid down in Attorney General for Alberta vs Attorney-General for Canada (AIR 1948 PC 194), it is declared that the Contempt of Court Ordinance, 2003 shall be deemed to have revived with effect from July 12, 2012, the day when Contempt of Court Act 2012 was enforced with all consequences,” the short order concluded.

In India contempt of court is of two types:

Civil contempt: Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has been defined as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.

Criminal contempt: Under Section 2(c) of the Contempt of Courts Act of 1971, criminal contempt has been defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:

Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or interferes or tends to interfere with the due course of any judicial proceeding, or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

Defenses allowed in court contempt proceedings: Clause (b) of Section 13 of Contempt of Court Act, 1971 that was introduced recently by 2006 amendment, allows the accused to raise the defense of justification by truth of such contempt, if the court is satisfied that it is in public interest and the request for invoking the said defense is bona fide.

However, no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.

England and Wales: In English law on contempt (the Contempt of Court Act 1981), the maximum sentence for this crime is two years.

Disorderly, contemptuous, or insolent behaviour toward the judge or magistrates while holding the court, tending to interrupt the due course of a trial or other judicial proceeding, may be prosecuted as “direct” contempt.

The term “direct” means that the court itself cites the person in contempt by describing the behaviour observed on the record.

Direct contempt is distinctly different from indirect contempt, wherein another individual may file papers alleging contempt against a person who has willfully violated a lawful court order.

Criminal contempt of court:

The British Crown Court has power to punish for contempt of its own motion when it notices disobedience of a court order or breaches of undertakings to the court.

Where it is necessary to act quickly the judge (even the trial judge) may act to sentence for contempt.

Where it is not necessary to be so urgent, or where indirect contempt has taken place the Attorney General can intervene and the Crown Prosecution Service will institute criminal proceedings on his behalf before a Divisional Court of the Queen=s Bench Division of the High Court of Justice of England and Wales.

The Magistrates= Courts are not superior courts of record, but nonetheless have powers granted under the Contempt of Court Act 1981. They may detain any person who insults the court or otherwise disrupts its proceedings until the end of the sitting. Upon the contempt being either admitted or proved, the judge may imprison the offender for a maximum of one month, fine them up to ,2,500, or do both.

It is contempt of court to bring an audio recording device or picture-taking device of any sort into an English court without the consent of the court.

It is not contempt of court (under section 10 of the Act) for a journalist in Britain to refuse to disclose his sources, unless the court has considered the evidence available and determined that the information is “necessary in the interests of justice or national security or for the prevention of disorder or crime.”

Strict liability contempt in England:

Under the Contempt of Court Act 1981 it is criminal contempt of court to publish anything which creates a real risk that the course of justice in proceedings may be seriously impaired.

It only applies where proceedings are active, and the Attorney General has issued guidance as to when he believes this to be the case, and there is also statutory guidance. The clause prevents the newspapers and media from publishing material that is too extreme or sensationalist about a criminal case until the trial or linked trials are over and the juries have given their verdicts.

Civil contempt in England:

In civil proceedings, there are two main ways in which contempt is committed:

Failure to attend at court despite issuance of summons requiring attendance or failure to comply with a court order.

A copy of the order, with a “penal notice”Ci.e., notice informing the recipient that if they do not comply they are subject to imprisonmentCis served on the person concerned.

If, after that, they breach the order, proceedings can be started and in theory the person involved can be sent to prison. In practice this rarely happens as the cost on the claimant of bringing these proceedings is significant and in practice imprisonment is rarely ordered as an apology or fine are usually considered appropriate.

The United States: Under the American jurisprudence, acts of contempt are divided into direct or indirect and civil or criminal. Direct contempt occurs in the presence of a judge; civil contempt is “coercive and remedial” as opposed to punitive.

Direct contempt: It occurs in the presence of the presiding judge and may be dealt with summarily: the judge notifies the offending party that he or she has acted in a manner which disrupts the tribunal and prejudices the administration of justice. After giving the person the opportunity to respond, the judge may impose the sanction immediately.

Indirect contempt: This occurs outside the immediate presence of the court and consists of disobedience of a court’s prior order. Generally a party will be accused of indirect contempt by the party for whose benefit the order was entered. A person cited for indirect contempt is entitled to notice of the charge and an opportunity for hearing of the evidence of contempt and, since there is no written procedure, may or may not be allowed to present evidence in rebuttal.

Contempt of court in a civil suit is generally not considered to be a criminal offense, with the party benefiting from the order also holding responsibility for the enforcement of the order.

However, some cases of civil contempt have been perceived as intending to harm the reputation of the plaintiff, or to a lesser degree, the judge or the court.

If a person is to be punished criminally, then the contempt must be proven beyond a reasonable doubt, but once the charge is proven, then punishment (fine/imprisonment) is imposed unconditionally.

An eyebrow-raising case of contempt in United States:

In Chadwick v. Janecka Case of 2002, an American court of appeals had held that a man Batty Chadwick could be held indefinitely under federal law, for his failure to produce US$2.5 million as state court ordered in a civil trial.

Chadwick had been imprisoned for nine years at that time and continued to be held in prison until 2009, when a state court set him free after 14 years, making his imprisonment the longest on a contempt charge to date.

Contempt laws and the news media in the United States:

In the United States, because of the broad protections granted by the First Amendment, with extremely limited exceptions, a media outlet cannot be found in contempt of court for reporting about a case because a court cannot order the media in general not to report on a case or forbid it from reporting facts discovered publicly.

Newspapers cannot be closed because of their content.

However, in July 2005, a “New York Times” reporter, Judith Miller, was jailed for not testifying before a grand jury about one of her confidential sources.

Miller had invoked “reporter=s privilege” and had refused to reveal her sources in the American CIA.

She had to spend 85 days in jail protecting her source.

She was forced to resign from her job at The New York Times in November 2005.

What classifies as being in contempt of court in the United States and what are the consequences.

In United States, contempt of court may include obtaining or publishing details of jury deliberations, filming or recording within court buildings, making payments to witnesses, publishing information obtained from confidential court documents, reporting on the defendant=s previous convictions, mounting an organized campaign to influence proceedings, reporting on court proceedings in breach of a court order or reporting restriction, breaching an injunction obtained against another party, anticipating the course of a trial or predicting the outcome or revealing the identity of child defendants, witnesses, victims or victims of sexual offences.

Depending on the severity of the journalist=s actions, the punishment will vary. What=s more; the editor, publisher and owner of the media agency may also be held responsible.

What defences exist for being in contempt of court in the United States?

A number of mechanisms are available when defending a charge of being in contempt of court. Media agencies and their lawyers can argue that they were not in direct knowledge that the court case had begun when the report was published.

However this argument only holds up in if they can prove they approached the police and the courts to find out the details of the case.

Australia: In Australia, a judge may impose a fine or jail for contempt of court, including for refusing to stand up for a judge.

In December 2016, an Australian Journalist Krystal Johnson and her employer, news website Yahoo7, were found guilty of contempt of court after publishing an online article that forced a Melbourne murder trial to be aborted.

In February 2017, News organisation Yahoo7 was fined $300,000 and Sydney journalist Krystal Johnson was convicted of sub judice contempt of court.

Canada: In Canada, contempt of court is an exception to the general principle that all criminal offences are set out in the federal Criminal Code.

The Canadian contempt of court includes the following behaviours:

Failing to maintain a respectful attitude, failing to remain silent or failing to refrain from showing approval or disapproval of the proceeding, refusing or neglecting to obey a subpoena, willfully disobeying a process or order of the court and interfering with the orderly administration of justice or impairing the authority or dignity of the court.

Under the Canadian Federal Court Rules (Rules 466 and Rule 467), a person who is accused of Contempt needs to be first served with a contempt order and then appear in court to answer the charges. Convictions can only be made when proof beyond a reasonable doubt is achieved.

If it is a matter of urgency or the contempt was done in front of a judge, that person can be punished immediately. Punishment can range from the person being imprisoned for a period of less than five years or until the person complies with the order or fine.