There is an overwhelming view among jurists that the rules embodied in the law of contempt of court are intended to uphold and ensure the effective administration of justice. As Lord Simon said in AG v Times Newspaper Ltd (1974: AC 273 at 315) they are the means by which the law vindicates the public interest in due administration of justice.

In Johnson v Grant (1923 SC at 790) Lord President Clyde commented on contempt of court as follows:

“The phrase "contempt of court" does not in the least describe the true nature of the class of offence with which we are here concerned…

The offence consists in interfering with the administration of law; in impending and perverting the course of justice… It is not the dignity of the Court which is offended -- a petty and misleading view of the issues involved -- it is the fundamental supremacy of the law which is challenged."

It has been said that the law of contempt is of ancient origin yet of fundamental contemporary importance (Miller: Contempt of Court: 1976). Contempt of court certainly has a long history -- contemptus curiae is said to have been recognized phrase in English law since the 12th century (Fox: The History of Contempt: 1927). It is said to have its origins in the medieval devolution of royal powers to the courts from a monarch who was believed to be divinely appointed and accountable only to God. Be that as it may, it seems clear from the earliest legal history that common law courts in England have assumed the power to coerce those who obstruct the administration of justice.

One result of this continuing development and concern to protect the many facets of the administration of justice is that there are many forms of contempt. One commentator (Joseph Moskovitz: Contempt of Injunctions: 1943) has described contempt as "The Proteus of the legal world assuming an almost infinite diversity of forms", but equally it can be said that contempt of court is as diverse as are the means of interfering with the due course of justice.

Criminal and civil contempt of court:

One clear distinction is between criminal and civil contempt of court. The distinction between the two is that civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt of court is committed either when there is a contempt in the face of the court or there is an interference in the course of justice. Criminal contempt of court brings with it intention or mens rea.

Criminal contempt of court is generally committed in following ways: (a) contempt by publication, (b) contempt in the face of the court and (c) disobedience to judgments and orders of the court including undertakings given by a party to the court. As Lord Diplock said in AG v Leveller Magazine Ltd (1979 AC 440 at 449): " They all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process."

Purpose of the law of contempt:

One of the basic principles of justice is that 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. Among them are the rules of natural justice, for example, that no man shall be a judge in his own cause. The fairness of trials can be adversely affected by all kinds of conduct and publications.

A more subtle but no less important aspect of law of contempt is scandalising a court. Public faith in the proper administration of justice and in the authority of the law, which is essential for an ordered society, is of course promoted and supported in many ways. 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. Both scandalizing the court and the type of criminal contempt involved in prejudicing one particular trial are sometimes referred to as constructive contempts.

Contempt of court and freedom of discussion:

One aspect of contempt that deserves special mention is to protect and maintain the authority and integrity of the courts. Although there is a public interest in doing this, the rules thereby imposed also may impede and ultimately conflict with another public interest or fundamental right, namely, freedom of discussion which is a part of freedom of speech and freedom of the press (Article 39 of the Bangladesh Constitution).

Freedom of discussion is an important public interest for as Lord Simon said in AG v Times Newspapers Ltd (1974: AC at 315): " People cannot adequately influence decisions which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions."

It is not easy to reconcile these two public interests. On the one hand, with the advent of newspapers with large circulations, radio and television, there is arguably a greater need of vigilance to maintain the authority of the courts, on the other hand freedom of speech is part and parcel of democracy.

It is abundantly clear that democracy cannot flourish where one group is able to suppress the voices of another. The democratic environment to which people of Bangladesh aspire is a complex system of checks and balances with various components including the legal system and the media, performing vital functions. Another function of the media is arguably to pursue truth through investigative journalism.

Conclusion:

The law of contempt of court continues to play a key role in protecting the administration of justice. The law continues to be developed and adapted to meet the changing challenges to the supremacy of law. (The Law of Contempt: Arlidge and Eady: 1982 and 1999).

For the above reasons, Law Reform Commissions of many 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.

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