Dear Editor,
I was quite surprised to read that the Editor in Chief of Kaieteur News Mr Adam Harris, an experienced journalist and a young reporter had been cited by Mr Justice Reynolds for contempt of court and he had convicted both of them and fined them certain sums of money.
The media reported that the court ordered that these fines be paid within 24 hours failing which these persons would have to serve time in jail.
As far as I can recall all of this is quite unusual. Obviously a matter like this ought to be of tremendous concern not only to the media workers and media houses but also to the general public at large.
Surely in this day and age a situation where media workers can be summoned before a judge to answer before him a charge that he himself laid against them, raises serious questions about the freedom of the press, freedom of expression and the rights of citizens who are charged with offences.
This situation provoked me to look at the legal basis for all of this, or lack of it. Article 144 (1) of the Constitution of Guyana sets out the provisions to secure the protection of citizens. It states inter alia “if any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”
The language in this suggests four things, viz: 1) The hearing must be fair; 2) A reasonable time must have elapsed since the laying of the charge; 3) The court hearing the matter must be independent; and 4) The court must be impartial.
There is hardly any need here to emphasize that the constitution is the supreme law of Guyana and everyone is bound to observe and to uphold it including the President, ministers of government, the Speaker of the National Assembly, the DPP, judges, magistrates, army, police. In short everybody.
In this particular case that we are discussing, the questions of the fairness of the hearing, the independence and impartiality of the court have to be raised since the same judge who is complaining about the conduct of the accused in the first place, is the very person who is laying the charge and hearing the case and deciding guilt or innocence and penalties.
The constitution is quite clear on these issues. It strictly requires the court to be free from bias, not to approach the case with preconceived notions of guilt or innocence.
The constitution also requires in 144 (2) (b) that the person charged be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence charged and 144 (2) (c) shall be given adequate time and facilities for the preparation of his defence.
All of this is quite clear. Therefore for a judge to issue a peremptory command for a citizen to appear before him or her to answer a serious charge of contempt, seems not to be consistent with 144 (2) (c).
Further Article 146 (1) of the Guyana Constitution which deals with the freedom of expression and the freedom to communicate ideas and information without interference clearly has a bearing on the matter under discussion since it involves the work of journalists whose business is to communicate information. Article 146 itself sets out the possible restrictions on these freedoms and these restrictions must all be prescribed by law.
These are clearly set out and include the “interests of defence, public safety, public order, public morality or public health (146 (2) (a) and the protection of reputations, rights and freedoms or the private lives of persons concerned in legal proceedings.”
The Contempt of Court Act 2010 addresses some of the critical issues involving journalists and the reporting of proceedings in court. The citation of contempt of court made by the judge had its roots in the publication by a newspaper of a report by a junior reporter dealing with a ‘voir dire,’ alternatively called a trial within a trial. The judge contended that as a result of the said publication he was forced to abort the trial he was conducting.
In the 2010 Act contempt is defined as conduct that essentially obstructs or interferes with the administration of justice and includes primarily inter alia the wilful disobedience or disregard for judgments, decrees, orders, or direction of a court, insult or disrespect offered to the court, the use of abusive or threatening language, use of violence, any other act or conduct that disrupts the due course of any proceedings before the court. The Act differentiates between (a) contempt “in the face of the court”, ie in the presence or hearing of the court and (b) other conduct so deemed.
In the case of (a) the court may have the accused before it “either forthwith or at any time before the rising of the court or the same day.” This is serious business because the court shall “proceed to pronounce upon a final determination of the charge” etc … either forthwith or at a date and time appointed by the court.
Serious business plus swift justice. Alleged contempt in the face of the court makes no allowance for “a reasonable time” to properly prepare a defence. In addition according to Section 13, no appeal shall lie from any order if guilty of contempt in the face of the court.
This is quite scary, particularly in view of the fact that the judge making the charge is the one hearing the case and pronouncing on the matter in such a summary fashion even before you can catch your breath.
This ‘no appeal’ provision would certainly be an interesting matter to have adjudicated before a properly constituted constitutional court.
It would be quite interesting to know whether the learned judges, having studied the fundamental rights of the citizens and the judicial system as set out in the constitution would be minded to uphold this prohibition on appeal while acknowledging that persons convicted of serious crimes like murder and treason can access the appeal courts.
In the English legal tradition there are many recorded cases where the press ran into trouble with the judges. Our lawyers like to mimic the British traditions and are always quoting from some ancient decision. In 1899 a colonial judge was accused of “reducing the judicial character to the level of a clown” and “being narrow, bigoted, vain, vindictive and unscrupulous”. The Privy Council held that this did not require committal for contempt.
A British newspaper who described the judge as an “imprudent little man in horse hair, a microcosm of conceit and empty headedness” was let go with an apology and a small fine.
This is all quite different from reports which scandalise the court and interfere with the administration of justice, eg, by attempting to influence juries.
In the American literature contempt has been classified as (1) Direct – acts against the dignity or authority of the court itself, in the person, of its judges, officers etc, so as to cause insult or resistance and (2) Indirect – disregarding orders, injunctions etc, of the court or interfering with persons acting under the authority of the court.
As far as published material is concerned, the Guyana Act in section 9 (2) states: “a person shall not be guilty of or punishable for contempt of court for the distribution of a publication which would otherwise be a contempt of court, if at the time of the distribution he did not know, or did not have any reasonable grounds for suspecting that the publication contained or was likely to contain any matter which amounts to contempt of court,” and further, subject to this section “a person shall not be guilty of contempt of court for the publication of a fair and accurate report of any proceedings pending before the court or any stage thereof” (Section 10 (1)).
Presumably in order to avoid unnecessary problems, the Act provides that the court may order that the publication of the proceedings or any part thereof be prohibited “where it appears to be necessary to avoid obstruction or prejudice to the administration of justice.” It is not known whether the judge in the particular case under discussion made any such order. If he did, any publication would constitute disobedience of a court order.
Clearly, there are certain built in protections for the media. The final item that the media reported on and which drew my attention was the 24 hour period within which the fines were to be paid, failing which the unfortunate editor and junior reported would have had to serve jail time.
Section 6 (3) of the Act provides that the fines must be paid “within a definite time, but not less than seven days.”
The Contempt of Court Act 2010 needs serious review and rewriting in order to bring it in line with the constitution, to protect the media and media workers and other citizens, and to modernise it.
It goes without saying that the media must never be allowed to obstruct the course of justice but a duty devolves upon the judges to advise the reporters and it would be a good idea for the media to pursue these issues in order to obtain further classification.
The penalties are enormous and they may just have the unintended effect of inhibiting the media from doing their job.
Yours faithfully,
Ramon Gaskin
