A case for Contempt of Court Law
The recent string of Contempt of Court cases against some public persons, and the recent conviction of a vociferous monk draw attention to the absence of a codified law on the subject.
Not that the conviction of the monk was bad in law. He was found guilty of disrupting court proceedings. In fact, he was ‘trespassing’ on a court case in which he had no role and tried to intimidate the Magistrate. His behaviour was found to be “contemptuous and coercive”. It would appear that the Courts have finally done what the monk’s seniors have been unable to do in restraining him. Similarly in the media spotlight, there are three others facing the music of Contempt of Court; a lawyer, a Chief Minister and a ruling coalition MP.
A Contempt of Court Law is a longstanding requirement in the country so that the public know the parameters of what is Contempt. In some cases, they should be obvious to any reasonably prudent citizen. “Scandalising Court” is what is at the root of Contempt, but what really amounts to “Scandalising Court”?
The Law Commission, the Bar Council and The Editors’ Guild have provided drafts towards such a law that is found in Britain, India and many other countries, but not in Sri Lanka. The media have expressed concern, especially over the protection of their sources but with exceptions where Court can demand the naming of a source. We have had the instance where two High Court judges hearing almost the identical case in separate courts gave diametrically opposite interpretations to the protection of sources.
In the 1970s, a deputy editor of the Daily News was sentenced to six months when he criticised the Criminal Justice Commission (Foreign Exchange) which had required witnesses to be “properly dressed”. Was that ‘Scandalising Court’? In 1991, a newspaper was found guilty of publishing an Opposition MP’s comment on an ongoing Presidential election petition.
And so, following a demand of the Colombo Declaration on Media Freedom and Social Responsibility of 1998 calling for a Contempt of Court Law, the then UNP Government appointed a Parliamentary Select Committee chaired by the then Opposition MP, Lakshman Kadirgamar PC to draw up such a law. Unfortunately, that Parliament was prematurely dissolved in 2004 with the Committee’s work half done and never was it resumed. The Right to Information Law that suffered the same fate then, however, was revived by this Government and passed into law, but not the Contempt of Court Law.
What are the avenues through which the public can scrutinise, comment and dissent with judicial pronouncements -- an inherent aspect of a vibrant democracy? Fair criticism of judgments is part of the democratic commitment to free speech. Truth is a valid defence to contempt in many countries. But these principles are not protected with certainty in Sri Lanka. Recent public discussion over judges recusing themselves from hearing particular cases has led to calls for a Code of Conduct for the judiciary itself.
Judges and legal institutions cannot claim exclusive rights to be exempt from public scrutiny. The Government must look at enacting a Contempt of Court Law that protects the due administration of justice when individuals behave ‘scandalously’ but at the same time protects the public against the capricious and arbitrary wielding of contempt powers that muzzle the right to dissent and the right to know. Rather than the simplistic construct of an all-powerfully indignant judiciary on one side versus a cowering populace on the other, a more complex far reaching and enlightened discourse on Contempt of Court must evolve.