Contempt of court is a doctrine rooted in common law, granting courts the authority to impose summary punishment on individuals who interfere with the administration of justice. This power, which includes holding attorneys in contempt, has historical foundations dating back to English law in the 12th Century and even earlier references in the writings of the Roman Emperor Justinian the 1st. While the Judiciary inherently possesses contempt powers, their scope and limitations have been refined over time through constitutions, legislative enactments, and judicial decisions.
Although judges have the authority to hold attorneys in contempt, this power must be exercised with caution to balance judicial order with the fundamental rights of legal practitioners and their duty to advocate zealously for their clients. A judge’s primary use of contempt against attorneys is to maintain courtroom decorum, prevent disruptions, and ensure respect for judicial processes. However, as observed in United States of America v. Bobby G. Seale (Court of Appeals for the Seventh Circuit), mere disrespect or insult does not automatically constitute contempt unless it materially obstructs the proceedings. The Court in US v. Seale emphasised that attorneys engaged in heated courtroom debates may express statements that they later regret, and unless such remarks significantly impede judicial proceedings, they should not be treated as contemptuous. Instead, contempt is established when an attorney’s conduct creates an imminent prejudice to a fair and dispassionate proceeding, with factors such as the tone, manner of expression, and the degree of disruption playing a crucial role in judicial determinations.
The nature and purpose of contempt power
Contempt of court is broadly categorised into civil and criminal contempt. Civil contempt typically involves the wilful disobedience of a court order, whereas criminal contempt encompasses actions that obstruct the judicial process or undermine the dignity of the court. Among the various forms of contempt, contempt in the face of the court refers to improper conduct occurring within the courtroom during a hearing, directly challenging judicial authority and decorum.
English jurist William Blackstone noted that contempt power has been exercised “as early as the annals of our law extend” and even American courts of the 18th Century employed severe punishments for contempt, including the amputation of limbs. In contemporary legal systems, contempt remains a potent tool, with judges empowered to impose fines or imprisonment without the extensive procedural safeguards afforded in other criminal proceedings.
The rationale of the Sri Lankan law
The Sri Lankan law on contempt of court is grounded in the principles of upholding judicial authority, safeguarding the administration of justice, and ultimately protecting the sovereignty of the people. The legal framework governing contempt is built upon three key pillars: the Constitution, the Judicature Act, No. 2 of 1978, and the recently enacted Contempt of a Court, Tribunal or Institution Act, No. 8 of 2024, alongside judicial interpretations that have shaped its application. Sri Lanka’s legal stance on contempt of court is fundamentally rooted in the protection of the sovereign rights of the people rather than the exaltation of the Judiciary. The rationale is that an independent and respected Judiciary is essential to ensuring justice and upholding the rule of law. Contempt laws function as a safeguard against disruptions that threaten the effective administration of justice, thereby securing the constitutional rights of the people.
This approach underscores that while freedom of expression is a cherished right, it must be exercised responsibly to ensure that judicial integrity is not undermined. The Contempt of a Court, Tribunal or Institution Act, along with constitutional and judicial precedents, establishes a well-defined boundary between legitimate criticism and actions that compromise the judicial process. By maintaining this balance, the Sri Lankan law ensures that the Judiciary remains an impartial, effective, and trusted institution in the service of the people.
Constitutional and legislative framework
Article 105(3) of the Constitution of Sri Lanka vests the Supreme Court (SC) and the Court of Appeal with the inherent authority to punish for contempt, whether committed within or outside the courtroom. This power underscores the necessity of preserving judicial integrity to maintain public confidence in the legal system. The Contempt of a Court, Tribunal or Institution Act, through Section 6, reinforces this authority by reaffirming the SC’s power to adjudicate contempt cases.
Additionally, Section 18 of the Judicature Act, grants the High Court jurisdiction to summarily try contempt cases and impose sentences of imprisonment (up to five years) or fines. This legislative provision highlights the Judiciary’s role in ensuring compliance with its directives and protecting its authority from acts of defiance or disrespect.
The Contempt of a Court, Tribunal or Institution Act aims to uphold the dignity, authority, and impartiality of courts, tribunals, and institutions while protecting the due administration of justice and ensuring adherence to judicial directives. It seeks to balance the freedom of expression with compliance with judicial processes and defines contempt with precision to maintain public respect for the due process. A person commits contempt if they intentionally disrespect or disregard judicial authority, interfere with or prejudice ongoing litigation, wilfully disobey court orders, or publish false information that scandalises judicial authority, prejudices proceedings, or obstructs justice. Unauthorised recording, publication, or alteration of court proceedings, as well as acts intended to undermine justice, incite public dissatisfaction, or cast suspicion on judicial administration, are also deemed contemptuous. However, contempt is not committed if a publication or expression is based on accurate facts, made in good faith, and concerns a matter of public interest, or if comments on judicial proceedings are fair, bona fide, and without malice. Other legally recognised defences also apply. This Act ensures judicial integrity while safeguarding responsible public discourse on legal matters.
Balancing authority and public interest
Sri Lankan jurisprudence has consistently affirmed that contempt of court laws serve not to elevate the Judiciary or protect the personal reputation of judges but to preserve public trust in the legal system. In Re S.A. Wickremasinghe, the Court observed: “The objective of this branch of law, of course, is not the protection of the personal reputation of judges but the protection of the authority of the courts, which must be preserved in the interests of the community.”
Similarly, in Hewamanne v. De Silva and Another, it was emphasised that contempt against judges constitutes an affront to the sovereignty of the people, as the Judiciary derives its authority from the people under Articles 3 and 4 of the Constitution.
The ruling in Kandoluwe Sumangala v. Mapitigama Dharmarakitta et al. further reinforced this principle by stating: “The law of contempt of Court does not exist for the glorification of the Bench. It exists — and exists solely — for the protection of the public.”
The exercise of the contempt jurisdiction must be approached with caution to maintain the delicate balance between judicial authority and legal advocacy. In Supreme Court Bar Association v. Union of India and Another, the Indian SC emphasised that contempt power should be wielded sparingly and only when an act threatens the administration of justice, impedes its course, or undermines public confidence in judicial institutions. The ruling clarified that contempt jurisdiction is not meant to protect the personal dignity of judges but to safeguard the integrity of the judicial system. Similarly, in the Contempt of a Court, Tribunal or Institution Bill [SC Special Determination Application Nos. 58-62/2024], the Sri Lankan SC reaffirmed that contempt powers must be exercised judiciously to uphold the dignity of the courts, rather than as a tool for personal vindication by judges.
A key aspect of this balance lies in ensuring that judicial authority does not stifle legitimate legal advocacy. Defense lawyers play a critical role in securing due process for their clients, but, as officers of the court, they must also avoid conduct that disrupts proceedings. Legal professionals must carefully distinguish between zealous representation and behaviour that crosses the line into contempt. Judges, in turn, must exercise their contempt powers with prudence, ensuring that the need to maintain courtroom order does not suppress legitimate legal arguments or advocacy. By adhering to this principle, the legal system can preserve both judicial integrity and the essential role of legal practitioners in upholding justice.
Conclusion
The power of contempt is essential to upholding the authority and integrity of the Judiciary, but its exercise – especially against attorneys – must be guided by principles of fairness, judicial restraint, and due process. While courts have the authority to sanction attorneys for conduct that obstructs proceedings, this power must not be wielded to suppress legitimate advocacy or dissenting legal arguments. Judges must ensure that their use of contempt jurisdiction serves the broader purpose of preserving public confidence in the legal system rather than enforcing personal authority.
A well-functioning Judiciary depends on striking a careful balance between judicial authority and the rights of attorneys to advocate zealously for their clients. The principle that contempt should be reserved for conduct that materially disrupts judicial proceedings, rather than mere expressions of disagreement or criticism, is fundamental to maintaining this balance. By exercising contempt powers prudently and ensuring that attorneys are free to engage in robust legal representation, courts can uphold both the rule of law and the essential role of legal professionals in the administration of justice.
Fiat justitia ruat caelum — Let justice be done, though the heavens fall.
(Dr. Sumanadasa is a lecturer at the Charles Darwin University, Australia. Thilakarathna is an attorney and a lecturer of Law at the Colombo University)
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The views and opinions expressed in this article are those of the authors, and do not necessarily reflect those of this publication