Scandalizing The Court: A Non-Existing Offence

By Nihal Jayawickrama –

A private member’s Bill was presented on 20^th July 2021 by Mr. Champika Ranawaka, MP., under the title: “Contempt of Courts”. Its long title describes it as “A Bill to define and limit the powers of certain courts in punishing contempt of courts and to regulate their procedure in relation thereto”. Despite its declared objective, its effect, if enacted, will be to expand the powers of judges to punish citizens for offences that no longer exist. It is also calculated to create confusion among judges, lawyers, and the public.

The Bill divides contempt of court into civil contempt and criminal contempt and proceeds to define these two forms of contempt. That task has already been performed.  For example, Article 111C of the Constitution makes it an offence for any person to “interfere or attempt to interfere with the exercise or performance of the judicial powers or functions of any judge”. That offence, according to the Constitution, is punishable by the High Court, on conviction after trial, with imprisonment which may extend to one year or with fine, and disqualification from being an elector for a period not exceeding seven years. The Judicature Act has already conferred on every original court a special jurisdiction to punish with the prescribed penalties every offence of contempt of court committed in the presence of the court itself, and all offences which are committed in the course of any act or proceeding in such courts, “and which are declared by any law for the time being in force to be punishable as contempt of court”.  These offences, some of which are defined in the Civil and Criminal Procedure Codes, include the failure to answer interrogatories or to produce a document, or to refuse to give evidence. The Bill, by seeking to trespass into fields already dealt with under the law, will only create confusion and uncertainty.

It is, however, in respect of what the Bill describes as “criminal contempt” that it seeks to re-introduce into Sri Lanka the archaic English common law offence of “scandalizing the court” notwithstanding that it has now been abolished in England by statute. The Bill describes that offence as “the publication (whether by words, spoken or written or by signs or by visible representations, or otherwise) of any matter or the doing of any act whatsoever which scandalizes or tends to scandalize or lowers or tend to lower the authority of any court”. As far back as 1983, in Hewamanne v. Manik de Silva, Mr. Justice Parinda Ranasinghe observed thus:

The modern approach in regard to this category of contempt of court seems to be heavily in favour of the courts being content to leave to public opinion attacks or comments derogatory or scandalous to them and to rely on their conduct itself to be their own vindication.

In England, the common law offence of “scandalizing the court”, while still being in force, had not been applied by any court since 1931. Lord Denning explained why:

Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must vest on surer foundations. Nor will we 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.

In 1970, Lord Salmon observed that to claim that “scandalizing the court” is a form of contempt was both unfortunate and misleading.

“This archaic description of these proceedings as ‘contempt of court’ suggests that they are designed to buttress the dignity of the judges and to protect them from insult. Nothing could be further from the truth. No such protection is needed. The sole purpose of proceedings for contempt is to give our courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented.”

In the Constitutional Court of South Africa, Justice Sachs observed that the words “scandalizing” and “disrepute” belonged to an archaic vocabulary:

“They evoke another age with other values, when a strong measure of awe and respect for the status of the sovereign and his or her judges was considered essential to the maintenance of the public peace.   The problem is not simply that the nomenclature is quaint but that it can be misleading. The heart of the offence lies not in the outrage to the sensibilities of the judicial officers concerned but the impact that the utterance is likely to have on the administration of justice. . . There might be a link between the repute of the judiciary and the maintenance of the rule of law. But it would be a mistake to regard them as synonymous. Indeed, bruising criticism could in many circumstances lead to the improvement in the administration of justice. Conversely, the chilling effect of fear of prosecution for criticizing the courts might be conducive to its deterioration. . . Criticism, however robust and painful, is as necessary as ever.”

In 2013, in England and Wales, by the Crime and Courts Act, Parliament abolished the common law offence of “scandalizing the court” as a form of contempt. Consequently, under English law today, contempt committed “in the court itself” includes only such acts as disobeying or ignoring a court order; shouting in court; or refusing to answer a question put to a witness by the court. Contempt committed “elsewhere” includes publicly commenting on a pending case by declaring on social media that a person is guilty or innocent; referring to a person’s previous convictions; naming someone the judge has allowed to be anonymous; naming victims, witnesses and offenders under the age of 18; naming sex crime victims; or sharing any evidence or facts about a case that the judge has said cannot be made public.

It is unfortunate that when Ranjan Ramanayake was charged with contempt of court in 2017 with having made a statement outside Temple Trees to the effect that “Majority in Sri Lanka are corrupted Judges, corrupted lawyers”, and a Rule was served on him by the Supreme Court at the instance of two members of the public, the Attorney-General who appeared at the eleven-day trial which resulted in his “conviction” and a sentence of four years rigorous imprisonment, and expulsion from Parliament, did not bring it to the notice of the Court that the common law offence of “scandalizing the court” with which he was charged had already been abolished in England by Act of Parliament, and was therefore no longer an offence punishable in Sri Lanka. Since it was in force in Sri Lanka only by reason of it being part of the common law of England (and therefore part of the “unwritten law” of this country), its abolition in England resulted in it being no longer part of the “unwritten law” of Sri Lanka.

It is this universally condemned offence that the private member’s Bill seeks to re-introduce into the Sri Lankan legal system, together with another extraordinary provision which states that “a judge, magistrate or other person acting judicially shall also be liable for contempt of his own court or of any other court in the same manner as any other individual is liable”!!!

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