Contempt Of Court: Hiragedarara Yawanna Hitiya Ekkenāwa Mama Raja Gedarata Yawwa

By M.A. Sumanthiran –

Thank you Deputy Chairman for the time allocated for me to speak on the very important bill that has been presented by the Minister of Justice today. I am saying important bill because for a long time the need was felt that the issue of contempt of court needed some intervention by the legislature. So what we thought was the application of the common law of contempt with all its uncertainties, be regulated better particularly with regard to the procedure one adopts in the Superior Courts. The civil procedure code has a chapter that prescribes procedures for the inferior courts, and therefore there is some procedure prescribed. The judicature act prescribes limitation with regard to sentences that can be imposed and in any case that is in facie contempt – they cannot try anything done outside that court unless specifically authorised by law. Our constitution has given the jurisdictions to the court of appeal to try those. 

The superior courts of record, both the Supreme Court and the court of appeal have adopted their own procedure in dealing with this issue. We have seen in the past not very long ago, when the Supreme Court in the exercise of its fundamental rights jurisdiction has summarily detained persons without a charge being read out; sent them to prison and tried and committed persons to judicial custody holding them in contempt. This happened in one particular case or two cases, if I remember right, one with regard to sand mining and the other with regard to sound pollution, where the then Chief Justice Sarath N Silva, presiding in the Chief Justice’s court, would entertain even photographs that somebody gave; will look at it and say “Ah here you have done sand mining” and sentence them to prison. These things happened.

It was important to lay down a procedure: particularly the right to be heard and the right be heard we understand, in a very substantial manner before a person is condemned. And also with regard to punishments, there had to be some direction – some limitations, rather than leave it to the court to decide as they pleased as to what kind of punishment must be meted out when a complaint of contempt comes before court. Unfortunately, although in the original bill that issue has been addressed, the Supreme Court in a special determination seems to have suggested that, that limitation is contrary to the constitutional provision and that it requires a referendum. And therefore the minister is moving an amendment, a committee stage amendment which have been given to us removing those limitations in the punishment. This is very unsatisfactory. It is ironic that we discuss conferring jurisdiction already. Its already conferred in the constitution but affirming that the court must have a right to punish for contempt, but also in the same proceeding here in Parliament express our dissatisfaction with regard to some of these special determinations.

That doesn’t lower the dignity of the Court. There must be at least one place where this must be discussed. And it is not only in Parliament that we can disapprove judgments of the court, there could be academic discussion outside Parliament also. That’s not contempt. You can disagree with judgments and this is one such instance I believe that one of the core purposes of bringing a statute is defeated when you leave those limitations of punishments out of the statute.

We have had instances when court has acted with anger, not with restraint, not with proportionality, so that is why it is important that we put down in the law the categories of offenses of contempt and limit those contempt and I think the original limitations were good: 6 months, 1 year and 2 years and not more than 2 years. Unfortunately we are not being able to do that because of the Supreme Court itself. And today is an instance when in this house, conduct of Judges and court was taken to the cleaners by a cabinet minister, no less. Often we have found the members of the oppositions saying things or if a government member saying something there will be objections raised based on standing orders that you can’t do this. But today the gravity of the subject was such not one single member of Parliament objected. The deputy speaker who was in your chair, felt uncomfortable and at one point merely drew the minister’s attention to standing order 83 – that’s all! all what he wanted to say was said, and that is a reflection of the sad state that the Judiciary is also in today. And I don’t think we should back-off thinking that if we discuss it here that is in some way an affront to the judiciary, no it is not; after all it is the Parliament that gives the judiciary the judicial power, the constitution has given, that was enacted in this parliament. 

In any case the judicial power of the people is vested in Parliament and it exercises it through courts and other institutions for the administration of justice. Therefore the Parliament has a special task to discuss these matters. I want to draw the minister’s attention to developments in other jurisdictions. Now its well and good that in order for judicial orders to be obeyed and respected that we have provisions to punish those who violate court orders. But the offence of scandalising the court or whether scandalising the court should amount to contempt of court is a matter that other jurisdictions have looked at and in many places it is no longer a part of the offence of contempt. 

England and Wales removed that as part of the contempt in 2013, that is because the idea of free speech, expression and accountability of the judiciary to even defend the orders that they make, are seem to be an important element in a democracy. I have the report of the law reform commission of Victoria which came out recently which is last year so that is why I have that document that has serialised how in other jurisdictions the scandalising contempt has been removed from the law. But in certain places they have allowed it to remain but with very limited application, limited need to protect against statements that impair public confident in court. The whole idea is that the confidence the public have in the judiciary must be earned; they must demand the confidence in themselves by their conduct. It is like respecting your elders or anybody else. By their very conduct the citizens will give their due recognition and respect; that is not forced out of them. And in certain issues, perhaps in certain areas judges come out and explain, and some countries have passed laws where it is made it is made obligatory to explain. Our law also says in judgements we must give reasons. That is the underlying principle. Why should you give reasons otherwise? You can say well, the court has power to rule and it has ruled. And that is why even today in certain instances when court refuses, particularly refuses leave to proceed in fundamental right cases we ask for reasons. In most cases they don’t give reasons because it is not obligatory. But you must give reasons, we’ve had fundamental right cases at leave stage itself argued for 10 days – surely to argue for 10 days there was reason to look into the matter. After full 10 days of arguments, full bench has said we see no reason to grant leave to proceed! That’s the only reason. That shouldn’t be; in matters of public importance, they must give reasons for their decision. 

Now the Supreme Court and the court of appeal supervise judgments of inferior courts and if the reasons are not given that in itself is a ground for appeal. We go and say “well they haven’t given reasons”. This issue hasn’t been dealt with, but that must apply equally to the superior courts also. Because the accountability is to the people: one has to understand that judicial power is a power of the people. And when we say it is the power of the people, that must have some meaning. For judicial independence, it is true that when a judge is appointed he can’t be removed except through special procedures, all of that is there. But that doesn’t take away from him or her the obligation to answer to the people. Because the function that they perform is a function of the power of the people that has been given to them to perform and they must constantly give account to the people of what they do. 

So this morning when we had these sitting here and various comments were made, it brought the judiciary into disrepute. Tomorrow or today even when people have seen this, and what was discussed in these hallowed precincts, people will regard the judiciary with contempt. But I’m not making a reference to this particular case, but if courts have conducted themselves in such a way like the instances I gave earlier, the same former chief justice Sarath N Silva, after he retired, on a political platform said, “Hiragedarara yawanna hitiya ekkenaawa mama raja gedaarata yawwa”. Samaawa illanawa, janathawagen samaawa ilanawa. Now he should have been sentenced to prison for that, for abuse of judicial power and public confession. Another one who sat in the seat of the chief justice – later it was resolved that he was never a properly appointed chief justice – a former president publicly said that he came to the president and said “don’t remove me from this post, I will hold everything in favour of the government”. And the president said that, President Maithripala Sirisena publicly said that. Now when you have people who have sat in the seat of chief justice, head of the judiciary, behave like that is, it any wonder that people have only contempt for court, is it any wonder? so what are we trying to do then? We are trying to forcibly, this is like the policeman in the magistrate’s court who says that you mustn’t cross your legs, you mustn’t read a book, and he thinks that is contempt. A false idea of what it means to respect court. So that is why I think the issue of scandalising court should be removed from this. Enforcing a court order, violating a court order, yes. That may be visited by punishment, but scandalising court in today’s age is not something that should be there. Other civilised jurisdictions are little by little removing them. This is the other reason why the Online Safety Bill when they have put in the contempt of court also we argued before the supreme court that that should not be there. Free expression must be permitted. When it exceeds bounds there will emerge a societal pressure, a community restriction that’ll somehow regulate that. Not everything can be regulated by enforcement of strict law like this. Again unfortunately we cannot agree with the determination of the supreme court in regard to the online safety bill. Very serious concerns have been raised and many of those serious concerns, there’s a record of 54 petitions filed, 45 counsel, one day court sat till 10 in the night, they have written a 62 page determination, but many of very crucial issues raised by the petitioners are not dealt with in the determination. So where can we say this? I mean can say it anywhere, but while commending the minister to have taken the steps towards a long felt need of a statute that prescribes procedure, we thought will prescribe punishments also, but at least a procedure is prescribed so that a person knows that if he is accused of contempt there is at least a procedural safeguard. But as it is you are going to remove the limitation of punishments leaving it to court to pass even death sentence for contempt. Strictly that is possible, that should not be the case. Another matter is the limitation of the time, a very salutary provision was there in the original draft, that within one year of the alleged offense the complaint should be made, but now it says court must take action within one year from it being reported to court. So 30 years after an alleged offence somebody reports it to court and court has to then within one year take action. That’s how it will read. How can that be when the penal offenses themselves have a restriction of 20 years, that this has no restriction at all. From the alleged offense there must be a limitation of time. So while welcoming this I urge the minister to take necessary steps to remove scandalising contempt from this; to somehow even by amending the constitution if necessary, have limitation on the punishment and to bring limitation of time. 

Thank you 

*Speech made in Parliament on 08^th November 2023 on Contempt of Court

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