Need for a specific statute that deals with contempt of court

This week the Supreme Court sentenced former Member of Parliament Ranjan Ramanayake to rigorous imprisonment suspended for a period of five years. The outspoken politician had pleaded guilty to contempt of court. The Registrar of Courts has filed the complaint alleging that Ramanayake’s remarks on a television program regarding the five-judge bench hearing the fundamental rights petitions challenging the decision of then-President Maithripala Sirisena to dissolve Parliament in 2018 had insulted the judiciary.

In 2021 a three-member bench of the Supreme Court sentenced Ramanayake to four years’ rigorous imprisonment after finding him guilty of the same ‘crime.’ He was imprisoned for a comment in 2017 that “a majority of Sri Lankan judges and lawyers were corrupt.”

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.

The judiciary in Sri Lanka 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 and warrants the question whether it was unfair of Ramanayake to raise the question regarding their integrity.

It is not long ago that former Chief Justice Sarath N. Silva publicly ‘apologised’ to the nation in an admission that he had arbitrarily set free then prime minister Mahinda Rajapaksa in the Helping Hambantota case allowing him to become president. The same chief justice has come on many a political stage and backed numerous politicians since his retirement. 

Former chief justice, Mohan Peiris now serves at the pleasure of the executive as Sri Lanka’s permanent representative to the United Nations in New York. He once famously said that the duty of the judiciary is to ‘assist’ the executive in delivering development and prosperity. Another former holder of this august office serves as President Gotabaya Rajapaksa’s personal lawyer in cases filed against him in the United States. 

These are only a few examples of the conduct of Chief Justices of the recent past and the conduct of some others in the judiciary are even less desirable. It is safe to say that the Court has lost much of its respect and dignity not due to the criticism of the likes of Ramanayake but due to its own conduct.

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.

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 judiciary needs to come down from its high horse and be able to evolve to suit the times akin to other modern democracies. If not contempt for the court will be the end result at a time the masses are demanding an overall system change to make Sri Lanka a more open, democratic and free county.