UNESCO
draws guidelines for judges in contempt cases
Judges to exercise extreme caution in the grant of restraint orders
in contempt cases, a judge to give the alleged contemnor an opportunity
to purge the contempt and tender a suitable apology before proceeding
with the action and judges to ensure that all contempt cases are
disposed of expeditiously are among a string of recommendations
made in the UNESCO's Manesar Declaration on Media and Judicial independence
adopted yesterday in India.
The
declaration was finalised at a seminar attended by participants
from Bangladesh, India, Pakistan, and Sri Lanka at Manesar, Haryana,
India concluded yesterday. The seminar was organised by AMIC-India
in association with FES and UNESCO.
The
UNESCO Manesar declaration recommendations are follows;
-
Governments and judges should at all times have regard to the
importance of the right to freedom of speech and expression -
a right which has been accorded pride of place in international
instruments such as the Universal Declaration of Human Rights
- while making and implementing the law on contempt of court.
-
The law and practice on contempt should be informed by utmost
clarity, precision, and certainty. The law on this subject should
be accessible to the public at all times and it should be given
wide publicity by the governments.
- All
stakeholders involved in the formulation and implementation of
the law of contempt should ensure that the law in practice is
compatible with international standards and international best
practice on the subject.
- Judges
should bear in mind that their powers of contempt are not used
indiscriminately, but only in circumstances of extreme necessity
where the integrity of the justice administration process is seriously
threatened. Judges should adopt the well-recognized principle
that no action is initiated for contempt in trivial cases. In
particular, judges should ensure that the powers of contempt are
never used vindictively or to wreak private vengeance. A distinction
needs to be made at all times between protecting the integrity
of the justice administration process and the personal dignity
or reputation of an individual judge.
- The
judiciary should ensure that cases involving contempt are never
heard by any judge in relation to whom the alleged contempt was
committed; in particular, it is imperative that no judge should
ever be allowed to be a complainant, prosecutor, and adjudicator
in cases involving contempt.
- Judges
should exercise extreme caution in the grant of restraint orders
in contempt cases where this would have a chilling effect on the
right to freedom of expression.
- Judges
should ensure that any conviction for contempt is based on evidence
that is clear, cogent, and beyond reasonable doubt.
- In
all cases involving contempt, a judge should give the alleged
contemnor an opportunity to purge the contempt and tender a suitable
apology before proceeding with the action.
- All
alleged contemnors should be treated with due dignity throughout
the course of the proceedings, which should be informed by the
utmost transparency.
- In
procedural terms, judges should ensure that all contempt cases
are disposed of expeditiously. All such proceedings, including
appeals, should ordinarily be disposed of within one year from
the date of their institution.
- There
should also be uniformity and consistency in the application of
contempt law within countries, so that there is clarity for the
media and the general public.
- The
powers of contempt should never be used to prevent public comment
on legal proceedings that have been disposed of, regardless of
whether an appeal or review has been preferred.
- Judges
should ensure that the confidentiality of a journalist's sources
shall be respected at all times, and any departure from this rule
shall only be made where the interests of justice, the investigation
and prevention of crime, or national security require.
In
terms of reform, governments and judiciaries:
a.
Should examine the desirability of abolishing the offence of "scandalizing
the court" which is increasingly seen as being anachronistic
and inconsistent with respect for freedom of expression;
b.
Should consider, as a matter of urgency, the need to allow defences
of:
I.
Truth; and
II. Fair comment, coupled with the public interest in both cases,
in relation to contempt proceedings;
c.
Should give consideration to affording reasonable protection to
whistle-blowers acting in good faith to safeguard the public interest;
d.
Should reexamine the issue of the severity and appropriateness of
punishments in existing law in relation to contempt proceedings.
In particular they should ensure that any punishment awarded is
not unduly harsh or disproportionate;
e.
Should formulate appropriate guidelines for the exercise of existing
constitutional powers in relation to contempt of court, having regard
to the principles informing the recommendations above, such as the
paramount importance of the right to freedom of speech and expression,
and the need only to protect the integrity of the justice administration
process where that is seriously threatened;
f.
Should consider the desirability of transferring jurisdiction to
try contempt cases to an ad hoc independent tribunal.
g.
Should ensure the uniform development of facilities to deal with
contempt powers within countries;
h.
Should urgently address the desirability of establishing media liaison
officers in the courts at all levels, so that queries or requests
for help from the media are dealt with promptly and effectively.
-
The media have a duty to act responsibly while reporting the courts
and/or commenting on pending cases or developments of interest
concerning the judiciary. In particular, the media needs to engage
fully with the judiciary and all other actors involved in the
legal process, and act as a watch-dog of the justice administration
process.
- Media
organizations, legal professional organizations, and civil society
groups should work together to ensure that journalists are adequately
and regularly trained and educated on issues relating to the law
of contempt and international best practice on the subject.
- Similarly,
governments and judiciaries should ensure that judges at all levels
are provided with adequate training and refresher courses on international
best practice, including the use of new media technologies, in
relation to contempt of court.
- All
stakeholders should work towards better regional cooperation in
the sharing of information and news of interest and/or concern
relating to the law, media, and information rights within South
Asia and further afield. In particular, they should explore the
possibility of setting up an interactive web-site for this purpose.
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