Law of Civil Liberties & Human Rights: Contempt of Court - Essay Example

Law of Civil Liberties & Human Rights: "Contempt of Court" Introduction: Contempt of court may be defined as any willful disobedience to a court order or any misconduct in the presence of a court (Miller, 1991). It is also described as an action that interferes with a judge's ability to administer justice or that affects the dignity of the court 1. There are two types of contempt of courts recognized by the judiciary system. It may be civil contempt or criminal contempt, but is highly punishable according to the court of law. The main objective of practice of contempt of court law is to protect the value of the law implementing agencies or courts as they are expected to deliver justice on favor of genuine persons. In other words, the law of contempt aims at providing uniform justice and will 1. The lactric law library’s legal lexicon on “Contempt of court”. http://www.lectlaw.com/def/c118.htm. strongly condemn any action against the law implementing mechanism. For example, in case of Attorney-General v Hislop. (1991) contempt of court was described as interference with the due administration of justice. However, there is a strong feeling that this law of contempt some tomes doesn’t go in tune with common law which is also very crucial for smooth processing of human activities. Especially the law of civil liberties and human rights get affected due to contempt of court even though a person expresses his free ideas once it draws the attention of judiciary. The basic principle behind the formulation and protection of protection of human rights and civil liberties is that all human beings are born free and equal in dignity and rights, endowed with reason and conscience, and should act towards one another in a spirit of brotherhood. Hence they are very crucial for dignified human existence. Hence there is a strong conflict between law of contempt and law of civil liberties and human rights (Howard Davis, 2003). Keeping these points in view the present study has been formulated with the following objectives. 1) To assess the status of law of contempt and its relevance in the present day society 2) To study and analyze the acts or statutes relating to law of contempt. 3) To evaluate the effect of law of contempt on civil liberties and human rights. Methodology: The literature has been reviewed relating to the various issues of contempts of court like its history, present status and case studies. Systematic and logical synthesis of ideas relating to law of contempt and its supporting statutes and acts has been made. The areas of commonality and conflict between law of contempt and law of civil liberties and human rights have been identified and evaluated objective wise which has been presented under “Results and Discussion” . Results and Discussion: To assess the status of law of contempt and its relevance in the present day society Contempt of court is nothing but a court ruling which, in the context of a court trial or hearing, declares an individual as performing contempt for the court and its associated powers 2. In other words it is an act which disregards the respect of courts. It is the highest remedy of a judge to impose sanctions on a person for acts which obstruct the normal process of a court hearing. It may result from a failure to obey a lawful order of acourt, disruption of the proceedings through poor behavior, showing disrespect for the judge, or publication of material deemed likely to obstruct a fair trial. The punishment may be in the form of a jail or fine for someone found guilty of contempt of court. Contempt may be mainly classified as civil contempt and criminal contempt. All courts are protected by the law on contempt, but only courts of record have a power at common law to punish for contempt. The literature suggests that the following contexts will constitute the forms of criminal contempt of court 3. 2 : Contempt of court. http://en.wikipedia.org/wiki/Contempt_of_court. 3. http://www.rosen.com/ppf/cat/statco/laws.asp#216. 1) Willful behavior committed during the sitting of a court and directly tending to interrupt its proceedings. Several cases where people have shown this type of behavior which is highly objectionable. (2) Willful behavior committed during the sitting of a court in its immediate view and presence and directly tending to impair the respect due its authority. One should not affect the normal course of court proceedings. (3) Willful disobedience of, resistance to, or interference with a court's lawful process, order, directive, or instruction or its execution. This form of criminal contempt is very commonly seen in several regions where the lawful activity of the court is directly challenged. (4) Willful refusal to be sworn or affirmed as a witness, or, when so sworn or affirmed, willful refusal to answer any legal and proper question when the refusal is not legally justified. This situation arises when a person knows bout some incident and can provide information but if he intentionally avoids his representation in the court. Under those circumstances, the court of law has no option except to go for a criminal contempt of court. As mentioned earlier, the court of contempt was originally thought for provision of justice to the common man and to avoid the obstruction to the judiciary system. However one should not try to misutilize it. (5) Willful publication of a report of the proceedings in a court that is grossly inaccurate and presents a clear and present danger of imminent and serious threat to the administration of justice, made with knowledge that it was false or with reckless disregard of whether it was false. No person, however, may be punished for publishing a truthful report of proceedings in a court. The influence of some court cases by publishing some untrue material when the proceedings are going on is really objectionable. However to protect the interests of the innocent public, this provision makes it clear that criminal contempt of court will not be made against the people who represent truth in their writings. (6) Willful or grossly negligent failure by an officer of the court to perform his duties in an official transaction. The contempt of court can be made against any person who obstructs the smooth process of law making and the officer of the court are also no exception here. It also proves the fact that the original intention of introducing this contempt was good, it is only the implementation of this law which leaves the scope of suspicion as far as the protection of human rights and civil liberties are concerned. (7) Willful or grossly negligent failure to comply with schedules and practices of the court resulting in substantial interference with the business of the court. This refers to all those activities which may slow down the whole process of administration of justice due to mere negligence on part of the persons while delivering their job. (8) Willful refusal to testify or produce other information upon the order of a judge acting pursuant to Article 61 of Chapter 15A, Granting of Immunity to Witnesses. This holds true especially in those contexts where the judge requires the additional information from the witnesses but the witness refuses to reveal the same which may jeopardize the interests of the innocent public and hence accounting for the criminal contempt of court. (9) Willful communication with a juror in an improper attempt to influence his deliberations and willful refusal by a defendant to comply with a condition of probation. This is also another important type of criminal contempt of court where the defendant may try to obstruct the smooth flow of law by wrongful communication with juror which is also very detrimental as far as the administration of justice is concerned. (10) Any other act or omission specified elsewhere in the General Statutes as grounds for criminal contempt. The main intention of keeping this point is that any act which may directly obstruct the judicial act or judiciary while discharge of the decisions relating to the law and not covered under the above mentioned points will also come under criminal contempt of court. For example, Mrs. Arundhati Roy, Booker prize winner and famous human rights activist of India was arrested in 2002 under criminal contempt of court as she passed some negative comments on the court’s judgment (Venkatesan a, 2002). Similarly the civil contempt of court includes the following acts: (a) Failure to comply with an order of a court is a continuing civil contempt as long as: (1) The order remains in force; (2) The purpose of the order may still be served by compliance with the order; (2a) The noncompliance by the person to whom the order is directed is willful; and (3) The person to whom the order is directed is able to comply with the order or is able to take reasonable measures that would enable the person to comply with the order. This has been kept mainly to ensure that the smooth processing of judicial proceedings should be allowed by obeying to the necessary acts or orders of court of law. Otherwise, it may result in indiscipline causing severe obstruction to the day to day court proceedings. (b) A person who is found in civil contempt may be imprisoned as long as the civil contempt continues, subject to the limitations provided in subsections (b1) and (b2) of this section. Notwithstanding subsection (b2) of this section, if a person is found in civil contempt for failure to pay child support or failure to comply with a court order to perform an act that does not require the payment of a monetary judgment, the person may be imprisoned as long as the civil contempt continues without further hearing. This has been kept mainly to protect the interests of the children which other wise will get severely affected. (b1) A person who is found in civil contempt, but was not arrested, for failure to comply with a nontestimonial identification order issued pursuant to Article 14, Nontestimonial Identification Order, of Chapter 15A of the General Statutes may not be imprisoned more than 90 days unless the person is arrested on probable cause. (b2) The period of imprisonment for a person found in civil contempt shall not exceed 90 days for the same act of disobedience or refusal to comply with an order of the court. A person who has not purged himself or herself of the contempt within the period of imprisonment imposed by the court under this subsection may be recommitted for one or more successive periods of imprisonment, each not to exceed 90 days. However, the total period of imprisonment for the same act of disobedience or refusal to comply with the order of the court shall not exceed 12 months, including both the initial period of imprisonment imposed under this section and any additional period of imprisonment imposed under this subsection. Before the court may recommit a person to any additional period of imprisonment under this subsection, the court shall conduct a hearing de novo. The court must enter a finding for or against the alleged contemnor on each of the elements of G.S. 5A-21(a), and must find that all of elements of G.S. 5A-21(a) continue to exist before the person can be recommitted. For purposes of this subsection, a person's failure or refusal to purge himself or herself of contempt shall not be deemed a separate or additional act of disobedience, failure, or refusal to comply with an order of the court. These provisions have been kept with an objective to maintain a balance between interests of the law of contempt and law of civil liberties and human rights. (c) A person who is found in civil contempt under this article shall not, for the same conduct, be found in criminal contempt under Article 1 of this Chapter. This explains the fact that a single person should not be punished in both the forms of contempt of the court for similar nature of mistake committed. For example, the Former American President Bill Clinton also was charged under civil contempt of court in 1999 (Times CQ, 1999) as he could not attend the court proceedings after receiving orders from the Magistrate. This proves that the contempt of court acts against any person irrespective of his capacity or position once it is proved that the violation of administration of justice is performed. The main logic behind the law of contempt is to ensure the basic principles of justice i.e. a person is entitled to a fair trial free from prejudice. No system of justice can be effective unless a trial fair to both sides is ensured and there are many rules of law and practice intended to support this principle. In several occasions, the judgment gets severely affected due to illogical and false publications. At the same time, the public faith in court of law should not be affected. However, the law of contempt gives one kind of support by providing a sanction against scurrilous abuse of judges or allegations that a judge or court is biased. It is no doubt that both the forms of contempt of court question the basic essence of the person’s freedom of expression, freedom of movement, freedom of thought and basic human rights. In several cases it was found true that there is a severe conflict between the law of civil liberties and human rights and law of contempt. Human rights are defined as those rights of human beings which are exercised for fulfilling their basic and dignified means of life. They are guaranteed for all the human beings and several agencies have been working for the better implementation of human rights. United Nations human rights commission is the prime agency working in this area for protecting the civil liberties and human rights. However, the law of contempt has been affecting the right of freedom of expression of media groups who investigate and report the current issues of society including the functioning of judiciary system. One has to think of regulating the present laws governing the contempt of court in such a manner so that the human rights and civil liberties will get less affected in the present day society. For doing the same, here is a need to study and analyze the various forms of statutes and acts regulating the contempt of court. To study and analyze the acts or statutes relating to law of contempt. The researchers reported that major contents relating to law of contempt have been described in Contempt of Court Act (CCA) 1981 (James Young, 1981). It clearly reflects the situation that only in cases where the court proceedings get severe obstruction due to the publication (section 2). Similalry the section 4 of the CCA explains that there will not be any contempt of court in those cases where fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith 4. Rather the court may ask for postponement of publication of the content so that the administration of justice will not get affected. Section 6 also supports this view as it implies that 4 :Contempt of court act 1981. http://www.swarb.co.uk/acts/1981Contempt_of_CourtAct.shtml. any publication is not publishable as contempt of court under the strict liability rule which would not be so punishable apart from those provisions 5. It certainly givesprovides more protection to the judges as it declares the contempt of court under section 8 when some one tries to obtain, disclose, or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings. At the same time, it has balanced this act with some exceptions to protect the interests of the public. The exceptions are as follows: (a) in the proceedings in question for the purpose of facilitating the jury to arrive at their verdict, or in connection with the delivery of that verdict. (b) in evidence in any subsequent proceedings for an offence alleged to have been committed in relation to the jury in the first mentioned proceedings, or to the publication of any particulars so disclosed. (3) Proceedings for a contempt of court under this section 5:http://www.swarb.co.uk/acts/1981Contempt_of_CourtAct.html ver 3 January 2006. (other than Scottish proceedings) shall not be instituted except by or with the consent of the Attorney General or on the motion of a court having jurisdiction to deal with it. This act also provided some safeguards to the customers in genuine reporting of facts in the news papers which is reflected in the section 10 of the act. It declares that in general the court will not ask any person to disclose the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is essential in the interests of justice or national security or for the prevention of crime. One should also analyze the relevance of statutes on human rights which is very important for ensuring the quality life of all human beings. If we see the example of state of human rights in United Kingdom, the efforts for legalizing the acts relating to the successful implementation of human rights have been praiseworthy. Since the Universal Declaration of Human Rights is not a legally binding document, the UN General Assembly adopted the 'International Covenant on Economic, Social and Political Rights' and the 'International Covenant on Civil and political Rights' in 1966 and United Kingdom ratified both covenants in 1976. United Kingdom also recognized Council of Europe's 1953 'European Convention for the Protection of Human Rights and Fundamental Freedoms'. The Convention allows individual petitions against governments to the European Commission on Human Rights, if all possible domestic remedies have been exhausted. Since 1966 United Kingdom has accepted the right of individual petition under the Convention and the compulsory jurisdiction of the European Court of Human Rights. This has resulted in the successful operation of human rights in United Kingdom as far as the rights of children and prisoners are concerned. However there were several occasions when the contempt of court has led to the restriction of human rights in general and right to freedom of thought and expression in particular. Over all, the awareness among the general public about the different statutes of civil liberties and human rights would certainly help them in defending their rights in cases of illogical operation of law of contempt of court. In this context the books relating to human rights like “Civil liberties and human rights in England and Wales” (David Feldman, 2002) and “Civil liberties and human rights” (Helen Fenwick) would be highly useful in enriching the knowledge of people about the status of civil liberties in the society. To evaluate the effect of law of contempt on civil liberties and human rights. As discussed earlier, there have been several areas where the contempt of court affects the law of civil liberties and human rights which further result in restriction of freedom of expression and communication. According to some investigators, one basic aspect of contempt of court that deserves special mention is to protect and maintain the authority and integrity of the courts. It helps in providing independency to the judiciary irrespective of the region. It will certainly protect the judges against the complaints of suspicion in cases of controversy and doubtfulness. It may so happen that the judge may be considered as indulged in the favor of one party or showing the signs of partiality which may not be true. In those situations, the law of contempt of court provides immunity to them which is quite logical. For example, in case of Nigeria, there was a strong feeling in 1957 that the law of contempt of court helped significantly in maintaining the independent nature of judiciary (Rewane, 1957). As the judiciary was mainly comprised of judges of the British and Nigerian origin, there were several occasions when the integrity of the judge was under suspicion and any intentional way of false reporting might affect the quality or genuineness of the judgment. In this context the necessity of law of contempt of court was felt for maintaining the neutrality of judiciary. It was also reported that the English private law and provisions of criminal code existed side by side or maintained their equilibrium due to the practice of law of contempt of court. It is quite understandable to empower the courts with the law of contempt for preserving their orders, enforcement of decrees and to get prevented from those actions that may interfere with the judicial proceedings (Herbert Barry,1924). Similarly, the administration of justice must not be interrupted by physical action or threats either by participants in proceedings or by outsiders. It is also equally important that the course of justice must not be thwarted or interfered by mis representation or criticism during the progress of a cause which may result in prejudice or intimidation on the part of witnesses or judges or jurors. Over all, the law of contempt protects the judges from the unnecessary suspicion and hence facilitates the smooth functioning of judiciary which is very important for welfare of the society. Although there is a public interest in doing this, the rules thereby imposed also may obstruct and ultimately conflict with another important public interest or fundamental right, namely, freedom of expression. When the judiciary does wrongful act, no one is able to express the genuine feelings because of this law of contempt which other wise results in restriction of person’s freedom of expression. For example, when Arundhati Roy was convicted under criminal court in 2002 for her disclosure of opinion on judiciary act, there was a strong feeling in the intellectual of India that the law of contempt had violated the human rights in general and right to freedom of thought and expression in particular (Venkatesan b, 2002). This holds more relevance to the press people as their main occupation lies in providing timely and accurate information to the general public including the response of judiciary to some important court cases. The public also gets enormously benefited due to impartial review of judicial proceedings and would help them in correct interpretation of court proceedings. But unfortunately, the contempt of court has become a severe hindrance in this context as it restricts the right of personal freedom of thought and expression. The most severely affected section of the society is media as this act affects the freedom of speech and freedom of the press 6. The conflict of contempt of court with the law of basic human rights was clearly visible in case of AG v Times Newspapers Ltd (1974) in which it was declared that freedom of expression is integral part of democracy and people cannot adequately influence decisions which affect their lives unless they can be adequately informed on facts - and arguments relevant to the decisions. The conflict between the human rights and contempt of court was also reflected in some other important court cases where the importance of freedom of press was felt by the judiciary system (Goodwin v United Kingdom,1966 and Camelot Group plc v Centaur Communications Similar state if affairs was also noticed in Limited,1999). ---------------------------------------------------------------------- 6. Barrister Harun ur Rashid is a former Bangladesh Ambassador to the UN, Geneva. Source: The Daily Star March 24, 2005 http://www.thedailystar.net/2005/03/24/d503241501112.htm. Similarly the civil liberties and human rights got restricted by law of contempt in case of Attorney General V Punch (2001) where the contempt of court was decided due to the publication of confidential information which was supposed to be causing threat to national security 7. However, the fact is that the law of contempt of court had clearly affected the common law and human rights by restricting the right of freedom of thought and expression. It is a clear case of breaching the article 10 of the European convention for the protection of human rights and fundamental freedoms and hence became disproportionate to the interests of the general public. The judgment in Sunday Times V United Kingdom (1979) also reflected the injustice caused to the genuine interests of the people in the name of contempt of court. The thalidomide was a drug used in 1990s by the pregnant women but has resulted in -------------------------------------------------------------------- 7 : Intellectual Property News & Articles from Around the World. 2001, Confidential information, Attorney-General vs. Punch Ltd. & Another Court of Appeal (Civil Division) Dated 23 March, 2001, Vol. 4 Issue No. 5. birth of deformed children. The affected public filed the writs and the Sunday Times news paper started publishing articles related to the production and marketing of the drug thalidomide which was considered as violation of the contempt of court. There was a big debate over this issue as several people felt that the contempt of court has wrongly been used for restriction of right to freedom of expression which is considered to be the pillar stone of the human rights. Moreover, the news paper Sunday Times helped the parents of the deformed children in getting the proper information regarding the manufacturing of the drug which is very much essential. Hence when, the publishers of the Sunday Times approached the European commission of human rights 8 with an application, the following observations were made by the commission which are very relevant for the present discussion. 8: The Sunday Times v United Kingdom (Series A No 30), European Court of Human Rights (1979-80) 2 EHRR 245, 26 APRIL 1979. http://www.hrcr.org/safrica/limitations/sunday_times_uk.html. 1) The thalidomide disaster was a matter of undisputed public concern and Article 10 of European convention for protection of human rights guaranteed not only the freedom of the press but also the right of the public to be properly informed. Hence the act of the Sunday Times should not be considered as contempt of court in any circumstance. 2) The families of numerous victims of the tragedy had a vital interest in knowing all the underlying facts, which would be useful for them to get sufficient justice anf the Sunday Times had facilitated the same. This underlines the urgent need of balancing both these laws with final aim of providing uniform justice and freedom of expression. The majority public opinion is in the favor of regulating the acts or statutes on contempt of court so as to reach an equilibrium. It must be noted in this context that there were some efforts done in this direction. Law Reform Commissions of several countries have been entrusted with the task of revisiting the existing law of contempt so that the two vital public interests are as far as possible reconciled. Phillimore committee is one of the important committees formed on analysis and regulation of contempt of court (Alexander McCall-Smith, 1975). Both the Phillimore Committee in the United Kingdom, and the Australian Law Reform Commission recommended the introduction of legislation to clarify the defence of fair and accurate report (United Kingdom Committee on contempt of court, 1974 and Australian law reforms commission, 1987). Both recommended that the legislation include a requirement that the report be not only fair and accurate, but also be published contemporaneously with, or within a reasonable time after, the proceedings to which it related. The Phillimore Committee also recommended that legislation expressly provide for the report to be made in good faith. It is fortunate to find that the recommendation of the Phillimore Committee was substantially adopted into legislation by s 4 of the Contempt of Court Act 1981 (UK), which helps in better safeguarding of civil liberties and human rights. Conclusion: The law of contempt has been meant mainly to protect the interests of the genuine legal laws and accurate administration of justice to common public. However it affects the basic human right and civil liberties of common people in general and media personnel in particular. It is challenging the right of freedom expression which is the pillar stone of democracy. Interpretation of different acts and judicial cases relating to contempt of court and its effect on human rights and civil liberties is very much needed to regulate the present provisions of the law so that a correct balance of human rights and law of contempt can be achieved. The organizations like United nations human rights commission and European commission on human rights must take the active lead for meeting this noble objective. Bibliography: Alexander McCall-Smith. (1975). Allegations of Judicial Partiality and the Phillimore Report. International and Comparative Law Quarterly, Vol. 24, No. 4 (Oct., 1975), pp. 862-870 Attorney-General v Hislop. (1991), p: 923 of 1 All ER 911, CA. Australian Law Reform Commission. (1987), Contempt (Report 35) (“ALRC Report 35”) at para 321-323, Appendix A (Administration of Justice (Protection) Bill 1987 (Cth) cl 28). Camelot Group plc v Centaur Communications Limited (1999), QB 124. David Feldman. (2002), Civil liberties and human rights in England and Wales. Oxford University press, P: 185. ISBN: 0198765037. Goodwin v United Kingdom (1966) 22 EHRR 123. Helen Fenwick. (2002), Civil liberties and human rights, Routledge Cavendish publication, P: 1256. ISBN: 1859414931. HerbertBarry. (1924). Contempt of Court Virginia Law Review, Vol. 10, No. 4, P:289-303. Howard Davis. (2003), Human rights and civil liberties, willan publishing, P : 672. ISBN: 1843920085. James Young. (1981), The Contempt of Court Act 1981, British Journal of Law and Society, Vol. 8, No. 2 , pp. 243-255. Miller, C.J. (1991), Contempt of court, Oxford University Press, P : 552. ISBN: 0198256841. Rewane,O.N. (1957), Contempt of Court in Nigerian Criminal Law, Journal of African Law, Vol. 1, No. 3, P: 172-185. The Sunday Times v United Kingdom. (1979). (Series A No 30), European Court of Human Rights (1979-80) 2 EHRR 245. 26 APRIL 1979. http://www.hrcr.org/safrica/limitations/sunday_times_uk.html. Times CQ. (1999), Clinton found in civil contempt for Jones testimony. Dated 12th April999.http://www.cnn.com/ALLPOLITICS/stories/1999/04/12/clinton.contempt/. United Kingdom, Committee on Contempt of Court (1974), Report of the Committee on Contempt of Court (Cmnd 5794, HMSO, London) at para 141. Venkatesan,J a. (2002). ArundhatiRoy jailed for contempt of court. The Hindu news paper, India dated 7th May, 2002. http://www.hinduonnet.com/2002/03/07/stories/2002030706060100.htm. Venkatesan,J b. (2002). Of criticism and contempt, The judiciary, Frontline, Volume 19 - Issue 06, Mar. 16 - 29, 2002.http://www.hinduonnet.com/fline/fl1906/19060270.htm. Read More