Fair trial for free expression

  • Judicial precedents should provide a reference for addressing the contempt of court bill in Parliament
- Binod Bhattarai
Fair trial for free expression

Jul 6, 2014-

A new bill in Parliament and a charge of contempt of court against the journalists of Kantipur daily has warranted a discussion on the limits of free expression and the power given to courts for use in preventing interference in justice administration.

The contempt of court case is for the courts to decide but the process is in the public interest and has to be closely watched because precedents (najir) are the equivalent of laws. Similarly, the bill also needs to be thoroughly discussed (It is something else that commentary on the bill has also been cited in the charge of contempt) to ensure that it does not infringe on free expression.


Basic rights

Both free expression (FOE) and the right to a fair trial (related to contempt) are basic democratic rights. The right to hold opinions, seek, receive and impart information and ideas is a cornerstone of democracy [Article 19 of the International Covenant on Civil and Political Rights (ICCPR) to which Nepal is party] as is the right to a fair trial (Article 14).

There are situations when free expression can be restricted, and according to Toby Mendel, an expert on FOE, “for protecting the rights and reputation of others” would include “rights linked to the administration of justice”. Therefore, the ICCPR provides a framework for dealing with both contempt and free expression laws.

Both sanctions of preventing interference in proceedings (sub judice) and of enforcing court decisions (though not much is heard about its use) are important and acceptable. But sanctions for ‘scandalising the court’—when judges are criticised—becomes of concern, particularly because decisions could infringe on free expression.

There is one argument for giving judges power to punish scandalising. The Supreme Court of Zimbabwe, in 2000, said that judges do not have a forum to reply to criticisms and cannot debate issues in public as that could jeopardise impartiality—therefore the right. (How this will apply in countries where judges have been reported visiting political party offices before and after appointments is something else). But in many mature democracies, the courts have begun doing away with this absolute power. Their reasoning is that if courts remain beyond slander in deed, there would be no need for criticism in the first place.

There is no doubt that courts need to protect both fairness and impartiality. They need the sub judice rule to prevent ‘trial by media’, for example. But there are also other ways to ensure fairness and impartiality. One example of how this can be done is through minimum assurance that adjudicators do not have conflicting interests and are not related to the dispute in question. “This is basic natural law. No one can be a judge in his or her own cause,” says Bhimarjun Acharya, a constitutional lawyer.

Constituting contempt

There is, in the draft bill, an inclination to use the contempt law to prevent media scrutiny of the courts, ostensibly for protecting public trust/confidence. But aren’t courts public bodies that must remain open to public scrutiny as any other—if not to higher standards of accountability?

There is also a long way to go towards winning public confidence. A 2011 survey by Interdisciplinary Analysts had found public trust in the Nepali judiciary to be around 5 on a scale of 1-10. (Public trust was 6.1 for TV, 6.5 for radio and 5.6 for newspapers.). The trust in the judiciary had declined from 5.4 earlier in the same year. There could be many factors affecting public confidence and the media might not be one of them but this is a subject for another study.

Contempt for scandalising has generally been used in situations where there has

been scurrilous abuse of a judge or court; imputation of bias or partiality made against the judge or court; or an imputation that a judge or court has been influenced by outside pressures.

The Supreme Court of Nepal decided on 17 contempt cases between February 1967 and December 2006. In the 2006 decision on a case against Himalmedia, the Supreme Court attempted to lay down principles on what could qualify as contempt of court. Among others, it would be contempt if anyone, through speech, writing or through publication, spreads baseless (emphasis added) rumours and scandalises the court. Another instance could be when someone interferes in justice administration through the same means. Another point on what could attract contempt is when anyone spreads rumours against the court in a manner that could create loss of public trust on the court and judiciary while the court officials are administering justice (done) in “bad faith, (with) mala fide intention and with ‘ulterior motives’”. The presiding judges did not find the cartoon that had appeared in the Himal magazine to be in

contempt while in some other cases, it did issue sanctions.

In one of the better-known cases of contempt after 1990—Thir Prasad Pokhrel v Harihar Birahi—the court sentenced the defendant to seven days in jail and fined him Rs 500. However, the court did provide the defendant a window of time to make a public apology, because the one submitted in court was ‘conditional’.


Keeping with the times

But rules are not static and are not uniform in application because law is also influenced by changes taking place in society. During colonial times, contempt for scandalising, for example, had become obsolete in England while it was still acceptable in the colonies. In 1992, it was enforced in Nigeria to prevent ‘chaos and disorder’. This, the court said, could result from diminution of authority and respect of the courts in a ‘largely illiterate’ society. These examples, as Mendel argues, also suggest ‘strains of elitism’ in some laws.

Mature democracies are moving beyond punishing journalists for doing their jobs, which is to make public bodies accountable. So it is ironic that a supposedly democratic government has a bill that tries to control speech by shielding the courts.

In a 1983 decision, the Australian High Court said that public confidence (in courts) should not be shaken by ‘baseless attacks’ on integrity or impartiality, suggesting that well-founded criticism is acceptable. In the United States a charge on scandalising could hold only when publication creates a ‘clear and present danger’ in justice administration. Similarly, in Canada (1987) the Court of Appeal said, “as a result of their importance the courts are bound to be the subject of comment and criticism… But the courts are not fragile flowers that will wither in the hot heat of controversy…”

The Nepali Supreme Court’s decisions on contempt provide a reference for addressing the bill in Parliament. The case, now in court, could similarly provide insights into more recent thinking and jurisprudence.


Bhattarai is a media and communication consultant

Published: 07-07-2014 08:40

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