Codifying contempt

Wednesday, 28 July 2021 00:00 -     - {{hitsCtrl.values.hits}}

Taking a valuable initiative, Opposition lawmaker Patali Champika Ranawaka recently moved to codify a contempt of court law in Sri Lanka.

The private member’s bill seeks to define specific civil and criminal offences that amount to ‘contempt’, prescribe appropriate punishments, and regulate judicial procedures dealing with the offence. The bill defines contempt of court to mean wilful disobedience of a court order. 

‘Criminal contempt’ has also been defined in the bill as publication of any which lowers the authority of any court, interferes with the course of judicial proceedings or obstructs the administration of justice. Most importantly, the bill defines what should not be construed as “contempt of court” and imposes a clear fine and punishment as suited to the offences.

To say the effort to codify contempt of court is overdue is a gross understatement. In so far as it prohibits legitimate criticism of the Judiciary, its pronouncements and determinations, contempt of court is archaic legal tradition. Most common law jurisdictions, including the UK, have done away with provisions that seek to penalise citizens for criticism of the Judiciary. 

In most countries, contempt of court laws specifically addresses the issue of influencing an ongoing court proceeding which could prevent fair trial, including the failure to be present in court when summoned or the violation of a court order. Contempt in these jurisdictions has been redefined to mean that the failure to comply with judicial orders is an insult or affront to the judicial power of the people as exercised by the courts of law. This is precisely what Ranawaka’s draft legislation proposes. Sri Lanka’s own contempt of court traditions originated under British colonial rule, but Parliament never made it a priority to adapt these provisions to meet the needs of a modern democratic country. For over 70 years the offence of contempt of court has been retained in Sri Lanka’s statute books. The laws pertaining to the offence is found at present in Article 105 (3) of the Constitution, section of the Judicature Act and Section 120 of the Penal Code. 

The power to punish for contempt is exercised by the Supreme Court and the Court of Appeal. Punishment or fine may be imposed “as the court deems fit”. The Penal Code defines the offence of contempt of court as one where “whoever by words, either spoken or intended to be read, excites or attempts to excite hatred to or contempt of the administration of justice”, which through the decades, judges have interpreted as a prohibition of criticism against the Judiciary.

The open-ended, vague, and abstract definitions in law have made contempt provisions ripe for abuse and exploitation over the years. The most recent victim of this legal lacuna was former MP Ranjan Ramanayake, whose off the cuff remarks about judicial corruption landed him in jail with hard labour for four years. 

The sentence was deemed extremely harsh considering the ‘offence’. Concerns have also been raised about whether contempt of court provisions were being used to silence criticism and stifle dissent. Nearly two decades before, then UNP MP S.B. Dissanayake was jailed for contempt by Chief Justice Sarath N. Silva – whose own judicial history remains chequered – for remarks made about the courts at a rally in Galle.

Nearly 20 years ago, former Supreme Court Justice Ranjith Dheeraratne told a newspaper that in the UK, nobody had been prosecuted for contempt of court in over 70 years. “Courts are part of the democratic system of governance. Within this system courts and judges can be criticised as long as it does not interfere with judgments and cases.” As stated in Kopyto, “The courts are not fragile flowers that will wither in the heat of controversy”, late Justice Dheeraratne argued.

There is no room for regressive, archaic contempt laws in modern democratic society, where criticism is not just a right, but an obligation. It is through creating such democratic spaces for dialogue and robust debate that a democratic society thrives. For too long, the Attorney General has used contempt laws to appease thin-skinned, unelected officials attached to one pillar of the State who believe themselves above criticism from citizens. 

MP Ranawaka’s Private Member’s Bill seeks to rectify this omission and bring Sri Lanka’s contempt provisions in line with contemporary common law world over. The Government has a duty to act on this initiative and ensure it finally addresses a massive lacuna in Sri Lankan statutes.