Based on a sample of a few badly-behaved judges one may conclude that the majority of judges are corrupt as he or she has practically no way to conduct a research to find out whether every single judge is corrupt. That is freedom of expression and no harm is done to well-behaved judges. If such comments can be tried for contempt of court especially when they have no relevance at all to a currently proceeding court case, Sri Lanka will have no time for anything else other than to keep on hearing such cases
By Helasingha Bandara
The purpose of this article is to generate a constructive dialogue amongst the legal experts, intellectuals and intelligentsia of Sri Lanka in order to explore the necessity of reviewing the entire criminal justice system, the Sri Lanka Penal Code and the related provisions of the Constitution of the Republic of Sri Lanka.
It appears that laws and the legal structure have not moved forward with the rest of the world and presumably stagnates on the anachronistic and ridiculous laws written down by the British to enforce their will upon the locals during the British rule of Ceylon. This is manifestly true by the hitherto use of pompous and archaic langue in the courts, a language that was employed by the colonialist to impress their white supremacy on the locals who they considered inferior. The British are gone, and we have regained our sovereignty which is ensured by the Constitution of the country.
The criminal justice system and its other apparatus should be modified to consolidate people’s sovereignty of a country which is governed by a people’s constitution to avoid arbitrary subjugation of its owners, the people. The imminent cause for the igniting of such thoughts was a recently concluded case of ‘contempt of court’.
SC Rule No. 01/2018 SC (Contempt of Court) Case No. 04/2017
Ranawaka Sunil Perera, 43/11, Walawwatta Road, Gangodawila, Nugegoda. Complainant vs. Sadda Vidda Rajapakse Palanga Pathira Ambakumarage Ranjan Leo Sylvester Alphonsu Alias Ranjan Ramanayake, No. A-5, Members of Parliament’s Housing Scheme, Madiwela, Sri Jayawardenapura, Kotte. Respondent
To: The respondent above named
WHEREAS you were interviewed by media personnel immediately outside the premises of Temple Trees, the Official Residence of the Hon. Prime Minister, after a parliamentary group meeting of which you were a member, on 21 August 2017.
WHEREAS the said interview was broadcast on ‘News 1st’ news bulletin at 10 p.m. on Sirasa TV of MTV Channel (Private) Limited on 21 August 2017;
WHEREAS you, in the course of the aforementioned interview, inter alia stated as follows;
Simplified English translation:
“Majority in Sri Lanka are corrupt Judges. Corrupt lawyers. About 95%. They work for money. They everyday protected murderers, corrupt people and drug dealers for money.”
For the full text: https://www.colombotelegraph.com/wp-content/uploads/2021/01/sc-rule-1-2018.pdf.
The sentence: For the aforementioned reasons, we convict him for the offence of contempt of court punishable under Article 105(3) of the Constitution and sentence him to a term of four (4) years rigorous imprisonment. The Registrar of this court is directed to issue a warrant committing the Respondent to prison to a term of four (4) years rigorous imprisonment.
Contempt of court
Given below are some of the definitions and explanations of the offence, ‘contempt of court’.
Contempt of court is the offense of being disobedient to or disrespectful toward a court of law and its officers in the form of behaviour that opposes or defies the authority, justice and dignity of the court. There are broadly two categories of contempt: being disrespectful to legal authorities in the courtroom, or wilfully failing to obey a court order. Contempt of court is essentially seen as a form of disturbance that may impede the functioning of the court.
Contempt of court happens when someone risks unfairly influencing a court case. It may stop somebody from getting a fair trial and can affect a trial’s outcome.
- Failing to maintain a respectful attitude, failing to remain silent or failing to refrain from showing approval or disapproval of the proceeding
- Refusing or neglecting to obey a subpoena
- Wilfully disobeying a process or order of the court
- Interfering with the orderly administration of justice or impairing the authority or dignity of the court
- An officer of the court failing to perform his or her duties
- A sheriff or bailiff not executing a writ of the court forthwith or not making a return thereof
- Insult a judge or justice, witness or officers of the court
- Interrupts the proceedings of the court
- Interfere with the course of justice
- Misbehaves in court (e.g., use of mobile phone or recording devices without permission)
- Juror who leaves without permission of the court during proceedings
- Disobeying a judgment or court order
- Breach of undertaking
- Breach of a duty imposed upon a solicitor by rules of court
England and Wales
Disorderly, contemptuous or insolent behaviour toward the judge or magistrates while holding the court tending to interrupt the due course of a trial or other judicial proceeding
In India contempt of court is of two types:
Civil contempt has been defined as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.
Criminal contempt has been defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:
i. Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or
ii. Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
iii. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
What are the necessary ingredients to constitute Contempt of Court in India?
Interference with Administration of Justice
The Court held that it was enough if a defamatory statement is likely or in any way tends to interfere with the proper administration of justice.
Sri Lanka: Section 120 of 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 or contempt of the administration of justice.
Contempt of court happens when an offence impedes the administration of justice. The phrase administration of justice is not taken out of context in any of the above explanations but meant the administration of justice in a court case that is currently being heard. This means that any act that perverts the course of justice or impedes the delivery of justice in a particular court case is construed as contempt of court.
From the notes above it is clear beyond any reasonable doubt that the involvement of a court and a trial is absolutely essential for an offence of contempt of court to happen. The offence may be committed within the said court premises or outside. Any offense, if it does not directly or indirectly prejudice, subvert or impede the delivering of justice in the court case concerned, is not contempt of court. Simply, in the absence of a court case proceedings, there is no possibility at all for contempt of court to happen. No trial, no contempt.
The contempt jurisdiction is not intended to uphold the personal dignity of the Judges. Judges rely on their conduct itself to be its own vindication.
Britain: The maximum penalty for criminal contempt under the 1981 Act is committal to prison for two years.
India: Six months of jail, or fine up to ₹2000, or both
Freedom of expression
In the case of PN Dua v Shiv Shankar and others, the Indian Supreme Court held that mere criticism of the Court does not amount to contempt of Court. The Court observed that in a free marketplace of ideas, criticisms about the judicial system or Judges should be welcomed, so long as such criticisms do not impair or hamper the administration of justice.
While the Indian Supreme Court held that mere criticism of the court does not amount to contempt of court in relation to a case that was proceeding at the time, criticism of judges or lawyers out of context should not have even the slightest relevance to contempt of court. Criticism of lawyers, judges or the justice system is the right of people which forms part of freedom of expression.
Assume, that the Chief Justice with his trousers down with a semi-naked female is found by a layman in a public park and got assaulted by the laymen who was outraged by the obscenity. Can the layman be tried for contempt of court just because the headman of the justice system represents the entire justice system. Similarly, when the husband of a witness who was raped by a magistrate in the court chamber itself was attacked with a bag of human excrement by the husband while the magistrate was hearing someone else’s case, can he be tried for contempt of court?
In the case of Baradanath Mishra v the Registrar of Orissa High Court the court held that a common form of such contempt is the vilification of the judge. The Court has to ask whether the vilification is of the Judge as a judge, or it is the vilification of the Judge as an individual. If the latter the Judge is left to his private remedies and the Court has no power to commit for contempt.
In Sri Lanka it was rumoured that one Chief justice has publicly admitted that he abused the power to pass a judgment of not guilty to a would-be President. A Prime Minister is said to have publicly announced that another Chief Justice has insisted that if he be given the Chief Justice post he would give favourable verdicts in all court cases that the President wanted favourable sentences.
A magistrate was known to have raped more than two women who came to his courts seeking justice for their grievances. Another judge, incidentally by the name of Abrew, committed suicide when the public discovered that he kept on raping an underage servant. Freedom of expression permits people to criticise those judges without being subjected to contempt of court.
When people say all politicians are corrupt, they do not literally mean every politician is corrupt. The expression, all politicians are corrupt is just an exaggerated expression as part of human conversation. Even scientific conclusions are based on the data of a sample. If they say Sri Lankans are alcohol drinkers, that conclusion must have been reached after surveying only a sample.
Based on a sample of a few badly-behaved judges one may conclude that the majority of judges are corrupt as he or she has practically no way to conduct a research to find out whether every single judge is corrupt. That is freedom of expression and no harm is done to well-behaved judges. If such comments can be tried for contempt of court especially when they have no relevance at all to a currently proceeding court case, Sri Lanka will have no time for anything else other than to keep on hearing such cases.
If any person encourages to hold such comments as contempt of court it may be an indirect attempt to subdue and silence people. It will prove to be impossible to silence people with such dreadful tactics even in a technologically not-so-advanced society like Sri Lanka.