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Law of contempt of court in SL: Lawyers group urges changes

17 Jan 2021

  • Threatens to go before UN

  • Justice Ministry ready to listen  

  By Ruwan Laknath Jayakody   Ministry of Justice sources said that the granting of the right to appeal in cases of alleged contempt of court should be looked at, especially in the context of drafting a new constitution. The Sunday Morning spoke to Ministry of Justice Chief Legal Advisor President’s Counsel (PC) Udaya Rohan De Silva in connection with a section of the legal community on Friday (15) urging the Parliament and the Government to draft a Contempt of Court Act to rectify the substantive and procedural shortcomings in the existing legal regime pertaining to the offence of contempt of court and to thereby ensure the people’s right to the freedom of speech and expression. Sharing his personal opinion, De Silva said that he was of the view that the right to appeal should be granted in such cases and that the court of first instance, should be the Court of Appeal (CoA) as opposed to the Supreme Court (SC). “We are ready to entertain and listen to views by groups of lawyers and others in this regard – whether we need a separate piece of legislation or whether the existing legislations including the Constitution need to be elaborated on.” The law with regard to contempt of court is found at present in the Constitution (Article 105 [3]), the Judicature Act No. 2 of 1978 as amended (Section 18 – High Courts [HCs] and Section 55 – District Courts [DCs], Family Courts, Magistrate's Courts [MCs], and Primary Courts), and the Penal Code as amended (Section 120). Article 105 (3) of the Constitution states that the SC and the CoA shall have all the power to punish for contempt of itself, whether the offence is committed in the court itself or elsewhere, with imprisonment and/or fine as the court may deem fit. Furthermore, the CoA has the power to punish for contempt of any other court (including HCs, courts of first instance), tribunals, or institutions, whether committed in the presence of such court or elsewhere.   According to the aforementioned provisions of the Judicature Act, DCs, family courts, MCs, and primary courts can punish contempt when it occurs within the courts, before a magistrate, and/or judge, while the HCs too have the power to punish for contempt. The 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”. On Friday, a section of the legal community warned, citing the people’s sovereignty in terms of the legislative power (Article 4 [a] of the Constitution) and judicial power (Article 4 [c] of the Constitution) being exercised by the Parliament through the judiciary, that they would along with citizens and civil society organisations go before the United Nations (UN) if the Parliament and the Government delayed or abdicated on rectifying the issue, as per the country’s international obligations accepted by the Government as a state party to the International Covenant on Civil and Political Rights (ICCPR). These critical sentiments were expressed by members of the Lawyers Forum for the People (LFP) organisation comprised of a group of lawyers including Namal Rajapaksha, Manju Sri Chandrasena, and Chula Ranjeewa Adikari, who addressed a media briefing held on 15 January in Colombo, organised in the wake of the SC, on 12 January, sentencing Samagi Jana Balawegaya (SJB) Parliamentarian Ranjan Ramanayake to four years’ rigorous imprisonment for contempt of court. Highlighting the lack of a proper definition of the offence in the domestic law and the minimum and maximum punishment imposed for thus and the procedure followed pertaining to the case, the LFP noted that suspects had the legal right to know the charge/s against them. Rajapaksha opined that in Sri Lanka, the law of contempt of court was in a backward state. He was of the view that people had the right to question the judiciary which was funded by public monies. Regarding the nature of the offence of contempt, while Rajapaksha noted that hindrance to the implementation of court orders should be considered as contempt of court, Chandrasena observed that in jurisdictions such as India and the UK, it was obstruction of the process of meting out justice that is considered as contempt of court. Adikari on the other hand expressed that justified, subtle criticism should not be conflated with contempt of court and thus silenced. He also opined that the concept of contempt was also tied to the concept of reputation. Chandrasena pointed out that the Contempt of Courts Act of 1971 of India (dealing with both civil and criminal contempt) and the UK’s Contempt of Court Act of 1981, was proof that other jurisdictions had separate laws to deal with such, whereas not only did Sri Lanka not have a separate Act of Parliament in this regard but that the existing legal framework granted judicial discretion with regard to deciding on a suitable fine and/or term of imprisonment, which he claimed was “dangerous”. “This is in conflict with the principle of criminal law which holds against laws having retroactive/retrospective application. One must know the punishment at the time of committing the offence. In the case of murder, we know that the Penal Code specifies the death penalty/capital punishment and that the Code of Criminal Procedure spells out the procedural aspects such as how to file the case and how to call for evidence, while for fraud it is imprisonment. But, in the case of contempt of court, we do not know until the court tells us. Furthermore, regarding the offence itself, we must be able to explain how it obstructed the process of meting out justice.” Section 4 (2) of the ICCPR Act No. 56 of 2007, as amended, holds that a convict of a criminal offence shall have the right to appeal to a higher court against such conviction and sentence/s imposed. “Ramanayake however did not have the right to appeal. This right should be there for the reason that Sri Lanka has an adversarial system, under which certain facts may not be presented to the court by the lawyers for the parties, whereas in other jurisdictions, a system where the courts themselves investigate is operative. This situation did not arise in the case of MP S.B. Dissanayake who was found guilty of the same, as Sri Lanka had not become a state party to the ICCPR then and neither does this arise in the case of the General Secretary of the Bodu Bala Sena Ven. Galagodaaththe Gnanasara Thera, as he was convicted of the same by the CoA and therefore, could appeal to the SC. The court of First instance in Ramanayake’s case was the SC, which is the final court of record. Therefore, for all these reasons, the law should be changed and reformed. The points raised must be considered and necessary steps must be taken with the Legal Draftsman to fill this lacuna in the law.” When queried by The Sunday Morning as to whether the Lankan situation was also contrary to the principle of natural justice which stated that no one is judge in their own cause, Chandrasena said that even though technically it is the Attorney General and the Court’s Registrar who sign the relevant documents pertaining to the said charge and not the judge/s, some have raised questions regarding the same.

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