Contempt Of Court? Or Contempt For The Law?
Prof S. Ratnajeevan H. Hoole
I have been involved partly in managing a Theological College for some years in Trincomalee. It has been an immense learning experience.
My more important lesson is in challenging the evil intentions of some Christian Pastors in court. That has taught me much about the law and its shortcomings. This article is particularly concerned about recent suggestions about new laws on contempt of court. Punishment for contempt involves a process that is inadequately defined. Not knowing ourselves what contempt of court is, we are scared of being charged. So we confine and restrict our rights fearing unknown punishments from an arbitrary court. This paper is to explore (through examining my exposure to stay orders) this rarely explored area where fear of contempt allows courts to be arbitrary and even unreasonable, thereby restricting freedoms in society.
I have learnt that a civil court stay order can be obtained very easily if you are prepared to lie and spend to sustain that lie. Spin a yarn if you want to stop an Annual General Meeting (AGM) where you expect to lose. Simply hire a lawyer who will get you any stay order if you are prepared to pay the lawyer specialising in this art, and perhaps the judge too. Many a judge will automatically issue an ex parte stay order and call for a hearing a month later. That is one month more in office by delaying the required election that you expect to lose. In one instance the date for challenging an ex parte order was 4 months later. For that, if that Pentecostal Pastor is to be believed, he paid his lawyer Rs. 925,000 which he tried to claim from the employer. The fact that lawyers do not issue receipts when receiving fees, allows clients to even make a tidy profit in going to court.
When I was on the Election Commission, almost a million rupees was paid to private lawyers since the Attorney General had a conflict with the Commission since he was representing a government agency in conflict with the Commission. As a result, the Commission that has to go through complicated tendering processes to buy pens for its staff, was able to bypass that process because lawyers’ ethics, conveniently rather profitable to them, do not make them go through advertising or competitive bidding. In contrast, if the Attorney General had represented the Commission, the charge would have been about Rs. 25,000 or perhaps just a little more.
In the Pentecostal Pastor’s case, the Respondents were many. His Petition listed them with flawed addresses like Jeyabalan with no first name and a Trincomalee address although he lived some 40 km away from Trincomalee. Another Pastor was listed as from Trincomalee but no street. Etc. So every three months, the Respondents would be absent and the judge, arguing for fairness towards the abentees, would ask for notice to be served again – and again – and again. Naturally three months later, no one would show up and another three months’ time would have been bought again.
There were other one-line addresses like Mullaithivu with the second line Puthukudiyiuruppu missing. I wonder how much time the Postman spent searching for these people. I equally wonder how the Post Office accepted Registered Post packets with obviously flawed addresses. I think money freely changes hands in the name of dispensing justice!
Even judges must have the impunity enjoy removed if we are truly to receive justice. In one case there was a Sinhalese lawyer who could get any absurd stay order from a District Judge. Although the language of court was Tamil, he would prepare affidavits in Sinhalese that would help harass the Respondents and effect further delay to stay in office. Such affidavits would be unsigned and yet certified by a Commissioner of Oaths that it was signed by the Deponent “before me” when there was no signature. I have seen more than 20 bogus affidavits like this accepted by a particular judge in cases presented to him by the same lawyer.
The cases are indeed absurd. One plaint says some Rs. 1+ million was stolen and in another place some Rs. 2.9+ million. With an affidavit with such gaping holes and no evidence like a police report, a stay order was issued.
A complaint to the Judicial Services Commission elicited no response, not even an acknowledgement! A judge personally said to me of this bad judge, “Why don’t they just promote him to the high court where he can harm only a few cases, whereas as District judge he affects hundreds of cases. I understand that a neighbouring bar has protested at his being dumped on them.”
Would writing this justify a contempt charge against me after I have tried to raise this officially? We need to take the risk if we wish to preserve our freedoms.
The courts are so susceptible to manipulation in the hands of a clever and unscrupulous lawyer. While there are perceptive judges, many lack the mental skills in addition to not bringing with them a strong work ethic to the courts. Not noticing the obviously flawed addresses is a clear case of weaknesses in intellect or commitment to work.
Notices could never be received with such addresses. The case has been going on from August 2019 without a hearing and only postponements. Attorneys with their bag of tricks like this to keep hopeless cases going on forever, charge for their clever strategies like this to prevent these fraudulent matters ever coming up for trial. And the opposition, often gives up emotionally and financially exhausted, and goes for a settlement. For, although there are many excellent judges, we are unable to bank with certainty on the judges being sharp, honest and people who read the case record prior to reaching a decision. My writing along these lines is arguably contempt but most people familiar with the system will agree with me that the ultimate judicial outcome of a case depends on whether the judge takes the time to read and study, and his capabilities in doing that.
In what I sense as a brotherhood among lawyers, it is rarely that a lawyer would openly challenge another engaging in unethical practices. Nor would lawyers tell a judge writing such bad English that his orders make no sense. A particular lawyer delivering dirty tricks like this, say other lawyers, first insists on Rs. 50,000 before even talking of the facts surrounding a case with the client coming to him. That is for taking the risk he takes in putting lies into the plaint. Even here, he is safe because he is covered by the fact that the actual lying is by his client through the affidavit.
That lawyer is good insofar as he wins impossible cases. For example, he agreed to take a case based on an untruthful claim misquoting a constitution. As the lawyer for the party aggrieved by the untruthful claim advised his client, however absurd the claim, once it is made, a judge needs to inquire into it. As a result, a seminary was closed for three years and worship was disrupted. So the lawyer with his bag of tricks had his reputation as a sharp lawyer enhanced because he delivered for his client.
When lazy, or corrupt judges give a stay order without facts to justify that order, they hedge their order so that no one understands what they areactually saying. An example is an order from a Commercial High Court judge saying “I think I should issue stay order ‘m’ from the Petition.” So was he issuing the stay order, or was he only thinking about issuing the order prayed for it without actually issuing it? The ones on whom the vague order was issued, were so fearful of being charged with contempt if they took up the position that no order was issued, that they took no chances. They assumed that the order the judge thought of issuing had been issued and obeyed it.
My mother used to drill into me the story of her Missionary Teacher prior to a school function. The Head Girl practicing her speech said, “I wish to think the Chief Guest for gracing this occasion.” The Missionary Teacher, Miss Muriel Hutchins, asked the Head Girl, “If you truly wish to thank the Chief Guest, why don’t you say, ‘I thank the Chief Guest’?” Like that, I believe the Commercial High Court judge only said he thought he should issue the order. Did he then have some doubts that he should issue the order? What is a party to the case to do? Is there an order or no?
In a recent case a group expecting to lose the elections at their Annual General Meeting, chose to ask for a stay order on the election. A person from side predicted to win the election, suddenly received an email from the Petitioner’s lawyer. It was one unnamed Petitioner. It failed to say who the Petitioner was. Indeed, there was nothing about the Petition. It stated (see the relevant page photographed here) that some unspecified stay order had been issued on the 2nd, 3rd and 4th Respondents without saying who they are. What is worse is that the communication came from the Instructing Attorney for the Petitioner rather than from the Registrar of the Court. The Petition itself was not received although what the Instructing Attorney sent said that the judge had ordered “Issue notice of this application to all the Respondents.”
That communication having been received two days before the Annual General Meeting for which many had travelled long distances, could the AGM be held when there is nothing on what was stayed? Nothing on whom the order applied to? Having come from the attorney of the Petitioner, was the communication even true? Is that the best we may expect from a Colombo High Court?
The lawyer for the client receiving this email asked the client to find out from court. The Registrar was busy over his daughter’s wedding and could send the
Petition only on Monday after the long weekend.
In fact, in this case the judge’s words are based on what was sent by the Petitioner’s Instructing Attorney:
“Being satisfied of the contents of the petition dated 25.09.2023, affidavit and the documents marked Z1-Z27, I am inclined to grant interim orders prayed for in prayers (d), (e) and (f) of the petition against the 2nd, 3rd, and 4th respondents.”
What is being “satisfied of the contents of the Petition”? There can be no doubt as the Counsel was there before the judge to verify that nothing in the Petition had been altered. What the good judge should have been concerned with is the truthfulness of the claims of the Petition. Alas, the Petition had not been sent by the Instructing Attorney who had interposed himself to do the Court Registrar’s work without the authority to do so.
That is, the judge is satisfied with the contents of the Petition but is only INCLINED TO GRANT the interim relief but FAILS TO DO SO.
This is the same double speak that the earlier described judge who thought he should issue the order but did not do so. This would let the judge say he issued the order and as necessary still deny that he ever did.
This was clearly a case where the order was issued with little cerebral or physical exertion. Can the courts expect us to obey an order that cannot be discerned for its meaning even by guess work? A responsible court should never issue a stay order that cannot be understood.
The lawyer for the only Respondent who had received the communication was firm. A former District Judge, his clear opinion was not to hold the AGM because when ordinary people do not genuflect before the court, the judges may come after them with vengeance.
That is the point of this article. Because courts can be unreasonable in issuing contempt of court punishment covering up their lack of time and ability to study a Petition, we need to restrict our freedoms fearing unjustified punishment.
In a decent and lawful society, we must know what punishment fits what offence. We cannot be expected to follow orders that lack exactitude or even orders that a judge thinks he should issue or is inclined to issue without issuing anything.
Judges who expect us to be lawful and proper, also have an obligation to be lawful and proper themselves. When judges lack that sense of obligation, they are being disdainful of justice and fairness, even evincing contempt for the law.
The lawyer of the clients on whom a stay order was not issued by the judge although he was satisfied with the Petition, advises to appeal against the order instead of holding the AGM. But appeal against what when no order was issued? The judge was only inclined to issue the order.
Welcome to the world of Legal Mumbo Jumbo.
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