Judiciary: Questions are being raised on when and how ‘contempt of court’ can be applied.

Contempt of court is often used during judicial proceedings when persons involved in the trial fail to comply with court orders. However, media professionals who have approached judiciary officials for stories have also been cautioned with contempt of court.

Even some practising lawyers allege  they are warned with contempt of court when they submit differing views.

The perception among observers is that the judiciary is using the term as a tool to silence criticism.

An official from the Office of Attorney General (OAG) explained that contempt of court is for litigants and defendants who fail to comply against a written court order and cannot apply to the public who discuss cases.

A private lawyer explained that contempt of court is applied when people obstruct due process of law, fail to comply with court orders and show disrespect to the court. “But our judiciary is using contempt power to instil fear in lawyers and the media from saying or writing against court.”

The lawyer also explained that a media person reporting facts of court should never be charged for contempt. “That is the very reason why we have open trials.”

Supreme Court’s registrar general, who is also the judiciary’s media spokesperson, Drangpon Tshering Dorji, disagreed. The drangpon said that courts in Bhutan use contempt of court sparingly.

He cited section 367 of the Penal Code of Bhutan and section 102 of the Civil and Criminal Procedure of Bhutan, which defines contempt of court but reiterated that judicial officials in Bhutan have been tolerant and used contempt on rare occasions.

Section 367 of the Penal Code of Bhutan states that a defendant shall be guilty of the offence of contempt of court if the defendant has been served with a court order and fails to comply without any reasonable cause.

The section also states that a defendant shall be guilty of the offence of contempt of court if the defendant purposely interferes with or interrupts a legal proceeding including failure to respond to a court directed inquiry, makes a public outburst, an antagonistic comment or directs a threat at a judicial official or person in the courtroom or engages in acts demonstrating a lack of driglam namzha befitting the court.

“The defendant shall be guilty of the offence of contempt of court if the defendant refuses to abide or obey a direction rendered by court,” the Penal Code states.

Section 102 of the Civil and Criminal Procedure of Bhutan states that a person showing disrespect to the court during proceedings may be subjected to civil and criminal sanction in accordance with the laws of contempt.

Civil and Criminal Procedure’s section 102 (i) states that a person may be subjected to civil and criminal sanction in accordance with the laws of contempt for interfering with a case, either orally or in writing, failing to comply appropriately to the judicial order and obstructing the course of justice.

Drangpon Tshering Dorji said the there are cases when people refuse to comply with court orders, especially summons orders and judgment execution.

He explained that there  are two kinds of contempt: civil and criminal. In civil contempt, a person is imposed a fine and reprimanded while in a criminal case, it is graded as a petty misdemeanour with one month to one year imprisonment. However, judges in Bhutan sentence a person only to a maximum of one week for contempt, the drangpon said. “It is only in times of judgment execution where the person is held in contempt of court until the order is complied.”

The Bench Book for Judicial Process, 2014, states that in exercising the powers of contempt under section 102 to 106 of the Civil and Criminal Code of Bhutan and 367 and 368 of the Penal Code, courts should ensure that a potential contemnor is fully and fairly informed in clear and exact terms that his or her conduct is wrong and intolerable, and warned of the possible consequences of continued misbehaviour.

Attorney General Shera Lhundup, however, said it is self-contemptuous to use the “sacred decorum” of contempt of court as a tool to threaten people who are looking up to the very court for the protection of their civil rights, which is inclusive of media protection and freedom of speech.

He said that the judiciary, as the guardian of the Constitution, is the institution to promote media.

An international consultant for media, law and ethics and also a professor of Law at Ulster University in Northern Ireland, (Dr) Venkat Iyer, who was recently in Bhutan to conduct a workshop on media ethics, said the concept of contempt of court is aimed essentially at preserving the integrity of the judiciary and at ensuring that the administration of justice is not in any way hindered or undermined.

He said that there are two broad types of contempt: one involving wilful disobedience of court orders, and the other involving unjustified attacks on judges or the judiciary as a whole.  “From the point of view of the media, both types are engaged, but the latter is more commonly the subject of controversy.”

Dr Venkat Iyer said contempt arising from unjustified attacks on the judiciary is called “scandalising judges” or “scandalising the court”.

“For this type of contempt to be used, the attack must be quite strong; not trivial or petty,” he said. “This is because, traditionally, judges are expected to take criticism in their stride like other public office holders in a democracy.”

Dr Venkat Iyer said that although the contempt power is a useful tool for the administration of justice, it should be used carefully and sparingly.  “Often, judges tend to use this power as a substitute to launching a defamation action, which would be the proper course of action where the judge’s reputation is assailed,” he said. “This temptation should be avoided, and journalists and free speech activists should be vigilant against such misuse of the contempt power,” he added. “A balance has to be struck between protecting the integrity of the judiciary and freedom of expression.”

Tashi Dema