The Sunday Times: Colombo: Sunday, August 07, 2016.
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.
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