Correcting Lanka’s ‘injustices by law’

With Sri Lanka’s Right to Information (RTI) law finally certified this week as Act, No 12 of 2016 by Speaker Karu Jayasuriya who remained a rare voice in pursuing what the cynics felt was a fruitless demand for a statutory right to know, a contempt of court law needs to be next on the country’s law reform agenda.

The judicial quality of mercy

We have seen unwelcome developments in regard to media law in the region and elsewhere during these few months, In the Maldives, the Government has proposed a Criminal Defamation Bill that puts the media in the direct line of penal fire, metaphorically speaking.

Thankfully Sri Lanka has abolished the law relating to criminal defamation though choleric politicians aroused to anger over their misdeeds being exposed in the press, has raised the call to restore those provisions from time to time. And in Singapore, legislation has been proposed on contempt of court in regard to news reporting and public commentary which aims to put journalists in jail for criticism of the judiciary.

Almost twenty years ago, as a legal practitioner just three years into the practice of the law, I recall a casual conversation with a particularly obnoxious appellate court judge following a threatened contempt of court charge. This was for writing a column which contained the colorful but quite unexceptionable reference inter alia that a particular judgment handed down by the High Court was seasoned with ‘salt and pepper.’

Not to preserve the ‘dignity of judges’

Annoyed beyond measure perhaps by a further injunction that the judicial mind perchance may have hearkened to the Shakespearean quality of mercy which ‘is twice blest; it blesseth him that gives and him that takes’, this worthy gentleman wagged an admonishing finger, saying portentously if not quite ridiculously that, ‘judgments of the court must be commented upon but not criticized.’ He was then stirred to heights of near apoplexy when reminded forthrightly in turn that the law of contempt has progressed far beyond those antiquated notions beloved of many Sri Lankans

This was best exemplified by the caution issued by that renowned judicial maverick Lord Alfred Denning as far back as in 1968. In issue was an alleged ‘scandalising of the Court’, a charge often leveled against radical critics of the judicial establishment. Here a member of the British Parliament who later became Lord Chancellor, severely and inaccurately criticized the Court of Appeal. In an admirably temperate response, Lord Denning observed that the contempt jurisdiction of the court will not be used by judges ‘as a means to uphold our own dignity’ which, as he said, must rest on surer foundations.

An equally but somewhat more laughable instance was when a lay litigant having lost her case, threw her books at the appellate judges. The books flew past the head of the presiding Judge, again Lord Denning. All he did was to issue a direction to the Court usher to lead her out of the Court whereupon she exclaimed: “I am surprised that your Lordships are so calm under fire.”

Our peculiar colonial hangovers

But it is one of Sri Lanka’s peculiar ironies that, having embraced the British colonial law as embodying all that which is right and proper at the time, there should be such strong resistance in regard to modernizing those very same laws, despite the fact that the modern United Kingdom has long discarded those archaic notions.

Certainly the gravity of the contempt process is as much the implicit threat that is held out to suppress and deter critical opinion as the actual citation for contempt itself. As Singaporean advocates protesting against the proposed contempt legislation warned, the risk of self censorship’ is an immediate result. That draft law goes far beyond what is acceptable even in that tightly controlled state by permitting the attorney general to level contempt allegations and by prescribing harsh penalties.

In this country, there is a well recorded history of law reform on codifying contempt laws. Regretfully, efforts by the Law Commission of Sri Lanka both in regard to Right to Information legislation and contempt of court laws have been uncommonly conservative. A more recent initiative by the Bar Association of Sri Lanka in the Presidency of the late Mr Desmond Fernando PC resulted in a draft law on contempt being finalized by a committee of lawyers (of which this columnist was one) and submitted by the Bar Council to the (then) Government. A Parliamentary Select Committee headed by the late Mr Lakshman Kadirgamar PC also examined the matter in depth. These are records that could be looked at.

Balancing the competing interests

In recent years, an overlooked consequence of Sri Lanka’s judicial system being engulfed in ugly political controversy under the Presidencies of Kumaratunga and Rajapaksas is that the weapon of contempt has been less in evidence. Judges appear to have been overwhelmed as it were by hostile critiques that had a core of truth about them, which many indeed had the conscience and good sense to acknowledge.

But in principle, Sri Lanka’s law on contempt has not been liberal in any sense whatsoever. In fact, even our most enlightened judges have been slow while sitting on the Bench to progressively advance the law of contempt. But the flip side of the coin is that unrestrained and vicious attacks on the judicial institution have also surfaced, particularly on the unregulated social media.

Where the offence of scandalizing the court is concerned, there are competing interests in issue. These are the dignity and the authority of the judiciary on the one hand and the freedom of speech and the public interest in the due administration of justice on the other. The two extremes that Sri Lanka has seen so far (namely judicial coerciveness versus judicial silence) must yield to a sober balancing of these two interests. That balance should not be left to the individual discretion of a particular judge. Instead it must be provided for by law with appropriate penalties. Protection must be specified for fair and reasonable comment on cases and the rule against commenting on pending proceedings in court must be based on the modern test of substantial prejudice.

Quite clearly, this is law reform meriting a measure of urgency.