Is contempt of court unlike any other crime?

2023-08-03

The purpose of the proposed Bill on Contempt of Court is to criminalise acts which may be considered to constitute the offence of contempt of court and to punish it. Clearly, this proposed Bill is meant to create offences under contempt of court and therefore, the purpose is to create criminal offences.

In creating criminal offences, there are set legal processes and legal provisions binding in all instances where offences are created and also when the offences are investigated, prosecuted and adjudicated. Once an offence is created, the ordinary course of law that prevails in the country takes over and these processes should be followed. That is the very meaning of equality before the law and this provision is recognised by Article 12(1) of the Constitution. Thus, a person accused and dealt with under the law for contempt of court should be treated first as a suspect, then as an accused and finally convicted as a convicted person, all within the general framework of the law that prevails within the country.

Besides, equality before the law as recognised under Article 12(1), is also based on the very notion of the rule of law. In a succinct definition of the rule of law, former Lord Chief Justice (CJ) of England and Wales, Tom Bingham has summed up this notion as follows: “all persons and authorities within the State, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”. Thus, all the obligations and entitlements of everybody emanate from the same principles which are equally applied to all. 

From this, it follows that like any other criminal offence, contempt of court as an offence should have a clear definition. As can be demonstrated from every offence in the Penal Code and other offences created under other statutes, there is always a clear definition which gives the boundaries within the scope of which the crime is understood and also prosecuted and adjudicated. 

The definition of the crime sets the limits for the investigations into any complaints relating to the commission of such a crime to compare the evidence available and to assess whether the requirements of the definition have been met by the kind of evidence that is available. Thus, the investigators into the crime are strictly bound to conduct their operations within the framework of the definition of the crime. This first of all implies that there is a definition of the crime.

The task of the Attorney General in particular is to examine the available evidence and to assess whether there is a likelihood of conducting a successful prosecution in order to prove the elements of the crime as enshrined in the definition of the crime. If no such definition exists, the prosecutor has no jurisdiction to go into the matter at all. 

The same is true about courts and judges. A trial judge when conducting a trial on a crime will strictly confine himself/herself to the legal limits within the definition of the crime. All other matters will be excluded from all trial proceedings. The presiding judge will ensure that nothing outside the scope of the definition of the crime being tried will be brought into the proceedings. And, in doing so, he/she will also be bound by the laws relating to the Criminal Procedure and also the Evidence Ordinance. All such trials are only possible when a definition of crime is available. 

The defence of the accused is also confined within the framework of the definition of the crime. The accused may take up the position that if there is no definition of the crime, that he/she is unable to answer the charges. His/her duty in offering a defence is determined by the legal definition of the crime on which he/she is charged. He/she has a right to know the charge and its legal definitions, and he/she has the right to get the assistance of lawyers, in order to have such definitions and all legal matters explained to him/her and also articulate his/her own position in terms of this legal framework. Where a definition clearly exists, the accused can prove his/her position by challenging any of the important aspects of the elements of the crime. If he/she successfully challenges any of these aspects, he/she would be discharged of any criminal liability. Even if he/she were to be convicted mistakenly, he/she would have a right to appeal and in the appeal, he/she could take up matters about the definition of the crime under which he/she is charged and as to whether the prosecution has discharged its duties of proving all the essential elements of the crime against him/her through legally valid evidence. If any of this fails, he/she has the right to be discharged. 

All these matters are important because in the draft Contempt of Court Bill, there is no clear definition or in fact any definition at all of what is called the ‘crime’ of contempt of court. Therefore, as this particular statute is meant entirely to be a criminal statute, it fails to be such a statute at all. The mere passing of a statute by whatever majority cannot create a criminal offence for as long as the criminal offence has not been statutorily defined. Therefore, voting on a Bill that is supposed to create a criminal offence, which has failed to do so, is a futile exercise. Thus, proceeding with this Bill as it is now will not serve any legally valid purpose because the offence that it is trying to create is not defined by law.

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