 |
||
|
||
SPECIAL REPORT |
|
||
|
||
SPECIAL REPORT |
Contempt of Court With the decision of
the Supreme Court (SC) asking the Congress president and former Prime Minister Girija
Prasad Koirala to appear in person before the court to clarify his alleged remarks against
its recent judgment, the new round of battle has begun now on contempt of court Vs
individual freedom. When other democratic countries around the world have already settled
the matter, the case against Koirala will decide whether contempt of court can limit the
freedom of speech and expression in Nepal. Congress leader Koirala - who is leading the
political struggle against regression by demanding the reactivation of the constitution
through the revival of the House of Representatives – finds himself facing another
kind of battle in the court. As Nepal is in the process of settling fundamental
constitutional questions, the judgment on Koirala’s case could shape the future of
freedom of speech and expression By KESHAB POUDEL
When former prime minister and Nepali
Congress leader Koirala made certain remarks on a recent judgment of the apex court,
people from different walks of life raised objections – in a strong reminder that
there is no dearth of people who wish to uphold the dignity of independent judiciary.
Despite strong reactions over the judgment, Congress leader Koirala, who is championing
the cause of democracy, too, later declared that his intention was not to defy the court
and announced that he would appear before the court respecting the sanctity of the
institution. “I respect an independent and
impartial judiciary, and I will appear before the apex court to express my
commitment,” said Congress leader Koirala. “My aim will be to enhance the
prestige and glory of independent and impartial court.” The faith and trust expressed by a large
number of people including Congress leader Koirala, who has been in the democratic
movement for more than five decades, on the judiciary is not a result of any punitive
actions or threat of punishment but a genuine faith and trust of the people in favor of
impartiality and independence of the judiciary. Although some groups of people including
lawyers had tried to defame the apex court a few months back in a drug related scandal,
the apex court - which has a history of many ups and downs – remains an independent
body protecting individual freedom. At a time when such a large number of
people are backing and defending the apex court on their own, a bench headed by Justice
Bhairav Prasad Lamsal endorsed a punitive action drawing contempt proceedings under the
contempt of court case filed against Congress leader Koirala asking him to appear in
person before the court. Koirala is yet to receive the letter from the apex court to this
regard. Filed by a group of lawyers affiliated to
Pro-Public, an NGO jointly working with the Commission of Investigation of Abuse of
Authority (CIAA) on good governance related issues, the petitioners demanded optimum
punishment for the 82-year-old Koirala. As demanded by the lawyers, Justice Lamsal - who
also had pleaded as a government lawyer demanding strong punishment for late B.P. Koirala
in 1977- issued the show cause notice asking Koirala to appear in person at the court. The petitioners argued that Koirala’s
remarks issued from his private residence immediately following the court's judgment on
the CIAA case scandalized the apex court and were punishable as contempt. In most countries with longer histories of
an independent judiciary, such charges would originate from the court itself. And the case
promises to go a long way towards defining exactly what limitations the court can place on
freedom of expression. “So far as the judgment of the apex
court on the case of former Prime Minister Koirala is concerned, it is no longer a
judicial process and the judgment has become public property. Any individual has a right
to view the judgment and express before the public in whatever language or manner he/she
chooses,” said senior advocate and eminent constitutional lawyer Kushum Shrestha. “To assume appraisal of the decision
of the court as constituting contempt of court is to assault or denigrate freedom of
speech and expression – a primary right.” Although former prime minister late
Manmohan Adhikary had made more derogative and harassing remarks against the judges and
judgment of the apex court in 1996 when the court had overturned his decision to dissolve
the House of Representatives, the court then had initiated a proceedings for contempt
asking late Adhikary to send his representatives. Late Adhikary's party had demanded the
death penalty for the justices who made the judgment in favor of the revival of the House
of Representatives. Interestingly, former Prime Minister Adhikary who used such harsh
reactions against the revival of the House, later filed a petition against the
dissolution. One of the differences between 1996 and now
is that, then, the House of Representatives was full and functioning- which could sanction
the judges and proceed with the impeachment. However, now there is no such body where the
judges can be held accountable. Past experiences have shown that dignity of
the court shall not be maintained through punitive actions. It is the impartial and
independent judgment of the court, which will enhance its prestige and glory. In 1993 when
the Court took actions under contempt of court against journalist Harihar Birahi for
publishing a cartoon, the court’s prestige was not enhanced. The current situation has a positive side
as well. A controversy on the case could force the court to take stock of itself, since
its status is based upon its independence and impartiality. The reactions of individuals
to the verdict could also pressure judges into delivering more impartial judgments in
future, which will strengthen the judiciary by making it a more credible organization. “If it has failed to convince a person
like former Prime Minister Koirala, with such stature and background, how can it convince
general people about its impartial judgment?” asked a lawyer. “One cannot
protect the dignity of the court by punishing or posing threat against those who express
doubts or suspicions about the performance of the court.” Koirala has already clarified what he meant
to say and has said that his intention was to warn people who are always trying to destroy
and disturb the independence of judiciary. Missing Part
The contempt of court case was filed
after the publication of remarks through certain publications, radio and television
broadcasts. It is the newspaper publication, television
broadcasting of alleged objectionable statements and materials that constitute the
contempt. Interestingly, no broadcaster, telecaster or publishers have been implicated in
the matter. The main party is not implicated. “Court seems to have thought
publication does not constitute the contempt. If so, how could Koirala be held to have
committed the contempt?” asked a lawyer. How the court could miss this simple
jurisprudence of the contempt in a hurry? If the publishers are not guilty, then how can
speaker be guilty? Only after the newspapers published the news before the public, did it
constitute contempt. That means the publishers of the story are the first perpetrators of
the alleged crime. “If court is so zealous about
protecting the dignity of court, why have it left out the newspapers - which published the
alleged statements” said a lawyer. Independence and impartiality of the
judiciary demand close scrutiny over various facets like independence of the institution
as expected by the constitution. “Is judiciary itself willing and
capable of maintaining and preserving the expected level of independence and impartiality?
Have the judges been able to maintain and attain the expected level of independence? It is
not enough to prove the court’s independence just on the basis of claims and
declaratory statements. Mere wish is not enough,” said the lawyer. "Had Koirala praised that the court is
impartial and sang a praise song, would that have been sufficient to prove independence
and impartiality of the court and raised its prestige and dignity? If that is so, lets ask
Koirala to pass a unanimous resolution from the open theater.” Contempt of Court
The contempt of court has different
meanings in different countries. But one of the universal values regarding the contempt of
court is that it is taken as a threat against individual freedom and expression. Courts
exercised the contempt of court cases in the name of maintaining their impartiality. According to the "Commentary on the
Nepalese Constitutions" by writers Dr. Surya Dhungel, Bipin Adhikari, BP Bhandari and
Chris Murgatroyd, contempt is of three kinds: contempt of court “at the face of the
court” is contempt during the proceedings in a court or in the immediate vicinity;
contempt of court in obstructing the course of justice includes contempt where actions or
words prejudice a trial by prejudicing the issue; and the contempt by scandalizing the
court consists of a contempt where judge is imputed with bias, or where the status of
dignity of a judge or a court has been affected. These traditional approaches of the
contempt of court have gone through tremendous change. The rights to expression and speech
are primary rights on which the dignity of man exists. Because of this primary fundamental
right, the concept of contempt of court has changed over the period of time. Contempt of
court, in no way, limits or infringes primary fundamental rights, which are right to life,
right to speech and expression. In a country like Nepal where a
considerably large number of cases of contempt are related to the scandalizing the court,
one of the challenges before the apex court is how to harmonize the two great
constitutional values of freedom of speech and fair and fearless administration of
justice, as these two values are indispensable to a free society. Whereas freedom of speech is essential for
and basic to a democratic form of government, fair administration of justice by fearless
and impartial courts is the necessary safeguard for democracy and rule of law. Contempt of court has to be considered in
subservience of these primary fundamental rights. Contempt of court is not a fundamental
right. Therefore, in the pretext of contempt of court, fundamental rights cannot be
ignored. “The contempt of court has been
provided in the constitution not to satisfy the egos of judges, their prestige, or their
facility. Nor is it to be used to cover their inability to deliver fair and independent
judgments. Their constitutional responsibility is to interpret laws which are relevant to
the case and which bear public importance,” said senior advocate and eminent
constitutional lawyer Kushum Shrestha. “The contempt of court has been
provided exclusively for the benefits of people to ensure independent judiciary. Judges
are not supposed to give judgments that are whimsical or out of tune with fundamental
values of the time,” said Shrestha. In one instance, when a judge of a high
court in England interpreted that there should be overt evidence of resistance from a
woman to constitute rape, such a silly interpretation was criticized by the editorial of a
famous newspaper as a foolish judgment in 1980s. In view of nuances of development of
freedom of speech and expression, scandalizing of the court is no longer taken as a
contempt of court in juxtaposition or against freedom of speech and expression. According to the Article 86.2 of the
Constitution of the Kingdom of Nepal 1990, the Supreme Court shall be a court of record.
It may initiate proceedings and impose punishment in accordance with the law for contempt
of itself and its subordinate courts or judicial institutions.
As per Articles 86.2, sub section 1
of section 7 of the Supreme Court Act 1991 has provided that the Supreme Court has the
authority to penalize wrongdoers with fines of amount up to NRs. 10,000 or imprisonment
for a maximum period of one year, or both if the court finds an accused is in contempt (or
in contempt of other courts or other judicial institutions subordinate to it). Except the sub clause, no law has been
framed to define the contempt of court. There are only judicial principles defined by the
apex court, which has been interpreted for their own convenience all over the world. In
democratic countries the definition of contempt of court has gone through tremendous
changes to keep in tune with the primary fundamental rights - freedom of speech and
freedom of expression. This case has given opportunity to the
Supreme Court to redefine the ambit of its contempt jurisdiction and fundamental rights to
freedom of speech and expression. One of the main purposes of freedom of
expression and speech is to protect unpopular views; to allow the criticism of the
government; to enable religious freedom; and to give citizen a voice in government. Supreme Court’s Judgment On
Koirala The Supreme Court disposed of the case of
Koirala pronouncing some binding provisions of the laws, which the Commission of
Investigation of Abuse of Authority (CIAA) was supposed to follow. Perhaps under too much strain of judicial
restraints, the court made the “request letter” of the CIAA redundant. The bench
headed by Chief Justice Govinda Bahadur Shrestha and Justice Hari Prasad Sharma said that
there was no law cited in the request letter issued by the CIAA to Koirala. Examining all
documents, the bench reached into conclusion that no lawful investigation and inquiries
have yet been initiated against Koirala.
A caution was made in the judgment
that any such investigation or inquiry by the CIAA has to be done by taking care of the
dignity and decency of the individual. The bench judgment showed that the letter
issued by the CIAA to Koirala was simply a request letter, which did not indicate any
investigation or inquiry relating to misconduct or corruption. In view of the above declaration of the
legal principles to be followed by CIAA, the court seems to have limited or confined to
declaring the legal status of the said “request letter” issued to Koirala
reserving all other fundamental issues for future scrutiny. Viewed against declaration of above
principles and drawing attention to this principle of CIAA, it can be said that the court
has passed a short of stricture against CIAA for not being mindful to the fundamental
principles of criminal investigations. So far as the judgment is concerned, the
judges have failed in their constitutional duties to define and interpret a fundamental
issue, which is the concern of the public at large, whether the finding of the commission
constituted under public inquiry committee and evidences gathered by it can be adduced as
evidence by the prosecution of the court. The second point is whether such a
commission’s findings – which are declared as confidential by the government,
can be taken as one of the bases for inquiry or investigation. The judges failed to give a
direct and straightforward interpretation of their finding. They have issued orders in
diplomatic and crafty language in which both the parties in the case can assume the
findings in their favor. Conclusion Whatever the consequences may be, the
battle of contempt of court Vs freedom of speech and expression has already begun in the
court. Thanks to Congress leader Koirala, who has been launching a campaign to activate
the constitution - Nepalese people soon could get the opportunity to find out what is
important - individual freedom or contempt of court. Major Highlights of the Judgment Following are the major highlights of the
SC decision issued on September 15 in which the court gave its verdict on the one and a
half year old case filed by Koirala. The Congress leader had filed the case following the
initiation of actions by the CIAA on corruption-related charges against him based on the
report by the Judicial Property Investigation Commission (JPIC) – which is yet to be
made public. - Commission for the Investigation of Abuse
of Authority should investigate on the subject in accordance with the Constitution and
law. The procedure for the investigation should be dignified and refined. - The commission and concerned authorities
should probe by maintaining secrecy until and unless there a prima facie is met out. The
CIAA must refrain from indulging in propaganda. There are provisions not to publicize or
disclose any matter pertaining to the inquiry. Referring to the earlier law and principle
declared by its larger special bench (2058-2-18) of AG Badri Bahadur Karki Vs CIAA and
others, the court drew attention once again that the CIAA must keep in mind that its
investigation process, by its very nature, is confidential and secret. - Holding that the status of the letter
issued by the CIAA to Koirala is not more than that of a request letter as such it cannot
be characterized as a letter of summon related to a corruption charge. However, the
honorable court, for the reason yet unexplained, thought it proper to refrain from making
any specific declaration on points, which Koirala has raised as fundamental legal issues
in his petitions. At this state we deem it fit to say and presume that the CIAA would rest
or base its case on JIPC report alone. - As the disputed letter did not contain or
refer any legal provisions under the CIAA Act 2048 related to a case of corruption or
improper conduct, it would be premature to presume that under the said request letter
petitioner (Koirala) could be charged or prosecuted. - As we find there is no case or no
investigation on the charge of corruption or improper conduct against Koirala at this
stage, we don’t think proper to speak anything that would prejudice the pending case
in this court. (Excerpts of the unofficial
translation of the six-page judgment) |
Send your feedback to the
editor: spot@mail.com.np |
