Long overdue contempt of court laws

This week the Cabinet of Ministers approved the proposal presented by the Justice Minister to draft a new law that would define and provide the necessary framework in determining the offence of contempt of court. This is a welcomed development, long overdue.

The Sri Lankan 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.” Such provisions were entered into 19th-century statutes to ensure the smooth functioning of the judiciary. A contempt is to protect the institution and to prevent interference in the course of justice. Undermining the majesty of the institution or undermining the authority that is vested in Judges is a very important takeaway.

In the absence of an Act of Parliament, the primary source of the law for contempt in Sri Lanka is the Constitution itself through article 105 [3] which provides for a broad and subjective interpretation by the Superior Courts. According to this provision, the Supreme Court and the Court of Appeal have all the power to punish for the offence, whether the offence is committed in the court itself or elsewhere, with imprisonment and/or fine as the court may deem fit. Most democracies, including those in our region, have evolved from those archaic days to ensure that the judiciary is also subject to robust democratic discourse. Lord Denning, who Margaret Thatcher called the “greatest English judge of modern times” had this to say to the law of contempt: “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity nor we will use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.” Sri Lankan judiciary clearly has not taken the advice of Lord Denning and lags very far behind many of its democratic counterparts where contempt of court provisions are sparingly used allowing for a debate, analysis and even outright criticism of judicial decisions. On the contrary, in Sri Lanka contempt has been weaponised to curtail the freedom of expression to a point it prevents even stating material facts about corruption, conflict of interest or inappropriate personal conduct of a judge.  

The most recent case of the arbitrary use of contempt is the sentencing of Member of Parliament Ranjan Ramanayake. The outspoken former MP, has now languished in prison for over a year for the crime of alleging most judges in Sri Lanka were corrupt. He was sentenced to four years of rigorous imprisonment by the Supreme Court for making the remarks to reporters in 2017.  The Sri Lankan judiciary is the only branch of the State to be appointed. After the reversal of provisions within the 19th Amendment to the Constitution that brought in a notion of transparency and due process into the appointment of judges, in lower and superior courts, the 20th Amendment has once again placed the sole onus of such appointments on the President. The calibre of some of the individuals that have occupied the highest positions of the judiciary has left much to be desired and the general public and their elected representatives should have the opportunity to hold them accountable for their conduct, both in and out of the courts.

As witnessed in the United States these days after Supreme Court overturned the 50-year-old precedent in Roe vs. Wade, which granted the federally mandated right for a woman to choose an abortion, there is now a robust debate on the conduct of the Court. Such democratic discourse is vital for a vibrant, democratic society and judges should not be allowed to curtail such fundamental rights of the citizenry. Sri Lanka can learn from robust Contempt of Court Acts such as the one enacted in India in 1971 and the UK in 1981 which opens the necessary democratic space for reasonable criticism and scrutiny of the Judiciary.