Need for a robust Contempt of Court Act

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. Yet, 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. 

Sri Lanka however 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. The time has long passed for Sri Lanka to address this anomaly and change the laws governing contempt of court.

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 desire. 

It is not long ago that a former Chief Justice ‘apologised’ to the nation in an admission that he had arbitrarily set free a political leader who he should have jailed for corruption. A purported former chief justice is currently serving as an ambassador without an iota of concern for the numerous conflicts of interest while another is serving as a personal lawyer to the president. The list of such absurdities is long and these are only examples of those who had once held the office of Chief Justice. 

Yet even a discussion of such matters can be judged illegal by the broad interpretation of the present laws. The fact is Sri Lanka does not have a specific statute that deals with contempt of court as in other countries. The primary source of the law 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.

Such draconian and broad interpretation has witnessed even members of parliament being imprisoned for statements they either made in public rallies or to the media. The fact that an elected representative of the people cannot open a discussion about the corruption, inefficiency and procedural flaws of the judiciary is itself a reflection of a broken judicial system and the dire need for reform governing such offences.

The time has come to stop silencing such criticism. If the status quo is to be accepted there would never be change, for the judiciary will not allow itself to be open to criticism. Other democracies have acknowledged that a citizen’s right to free expression, even that which is critical of the judiciary, outweighs any archaic notions of “attempts to excite hatred to or contempt of the administration of justice.” It is imperative that Sri Lanka enact a robust Contempt of Court Act of the likes of India (1971) and the UK (1981) which opens up the necessary democratic space for reasonable criticism and scrutiny of the judiciary.