Ensure right to criticise administration of justice
Principles on contempt of court must be reviewed and modified in light of Articles 3 and 4 of the Constitution, which vest legal and political sovereignty in the people and consequently gives them the right to participate in and criticise the administration of justice. This was noted by the Editors Guild of Sri Lanka in a submission on codifying the law relating to contempt of court in Sri Lanka. The Guild, in discussing the issue of contempt, observed that what action/publication amounts to contempt has not been defined by law, and noted that this has consequently been subjected to differing interpretations by courts and judges in Sri Lanka, the majority of which, they point out, have inclined towards the conservative.Consequently, the Guild notes, the chilling effect of this uncertainty and imprecision on the fair criticism of judgments and the reporting of legal proceedings is self-evident with journalists or citizens voicing their opinions on particular judgments of the courts or on proceedings before courts, fearing that they will be cited for contempt of court, with such fears in turn having inevitably impacted the public discussion on vital issues of national interest.According to the Guild, case law on contempt in Sri Lanka has accordingly been characterised by the subordination of the freedoms of speech and expression to an exaggerated need to protect the administration of justice. In this regard, they cited the judicial opinion by Justice Raja Sirimevan Wanasundera PC (joined by Justices Victor Perera, K.A. Parinda Ranasinghe [later Chief Justice], M.M. Abdul Cader, and Heevi Rodrigo) in Hewamanne vs. Manik de Silva and Another, where the Supreme Court (SC) went so far as to state that “the law of contempt of court….would operate untrammelled by the fundamental right of freedom of speech and expression.” In reference to the same case, the Guild added that the Court had unequivocally rejected the argument made that the principles of contempt must be reviewed and modified in light of Articles 3 and 4 of the Constitution – which vest legal and political sovereignty in the people, and consequently gives people the right to participate in and criticise the administration of justice.The Guild also dealt with the issue of sub judice, or commenting on ongoing legal proceedings. As per the Guild, sub judice has been used with ominous effect to stall the public discussion of cases, where such cases have dragged on in courts for a number of years.Citing In Re Garuminige Tillekeratne, per Justice Mark Damien Hugh Fernando PC joined by Justices Dr. Anthony Ranjit Bevis Amerasinghe and Ranjith N.M. Dheeraratne, the Guild expressed that the SC has held that any statements which might affect, or are likely to affect, the outcome of a pending case would amount to contempt, preferring consequently to take a harsher view, as opposed to the test of substantial likelihood of prejudice to the outcome of a case. The rule of sub-judice, the Guild emphasised, was introduced mainly to ensure that the press does not influence and/or prejudice jurors in jury trials given that jurors are not trained in the law. The applicability of this principle, however, to deliberations by an appellate tribunal, the Guild opined, is very problematic. In this connection, the Guild cited the Court of Appeal of England and Wales cases of Schering Chemicals Limited vs. Falkman Ltd and R vs. Duffy ex parte Nash, which pointed out: “Where the proceedings are, or will be before a Judge alone, the risk of influencing the Judge is minimal.” Further, the inherent improbability of so influencing an appellate tribunal, the Guild explained, was also recognised in the Court of Appeal of England and Wales and House of Lords case of In Re Lonrho plc where Lord Nigel Cyprian Bridge said: “So far as the appellate tribunal is concerned, it is difficult to visualise circumstances in which any Court in the United Kingdom (UK) exercising appellate jurisdiction would be, in the least, likely to be influenced by public discussion of the merits of a decision appealed against or of the parties’ conduct in the proceedings.”On the other hand, the Guild pointed out that Section 31(6) of the Parliament’s Standing Orders which precludes the asking of questions in the House which refer to any matter that is under adjudication by a court, or any matter on which a judicial decision is pending, is often used/abused to prevent an issue before court, being discussed in the House, which they claimed was an absurd interpretation of the sub judice rule adopted by the Parliament. The Guild was however of the view that a Parliamentary debate must not influence a decision pending before a court, and that the Standing Orders must necessarily reflect this position.Moreover, the Guild also discussed the issue of the disclosure of sources. The principle established in this regard, according to the Guild is that, the greater the legitimate public interest in the information which the source has given to the journalist, the greater would be the importance of protecting the source. The Guild explained that the prevalent Sri Lankan practice is to the effect that a court has the authority to order the disclosure of sources if it thinks it is necessary. According to the Guild, this over-wide context within which this power could be judicially exercised, has again led to uncertainty in the law. As evidence, they cited the criminal defamation (which has since been struck off the statute books) cases involving The Sunday Times newspaper (the Colombo High Court {HC} case of the State vs. Sinha Tissa Migara Ratnatunga before Judge [later Justice] Upali de Z. Gunawardena, and later the Court of Appeal case of Sinha Ratnatunga vs. The State before President of the Court, Justice Hector S. Yapa joined by Justice P.H.K. Kulatilaka) and Lakbima newspaper (Colombo HC case of the State vs. Bandula Padmakumara before Judge [later Justice] Shiranee Tilakawardane).Also, the Guild claimed, both these cases had been disposed of in the appellate Courts, without any final judicial pronouncement on the relevant issues. In this regard, the Guild claimed that while the trial Judge in the case related to The Sunday Times refrained from asking the accused-editor for his sources, and in fact, went to the extent of restraining the state prosecutor from persisting with this line of cross-examination in the face of a persistent refusal by the accused-editor to divulge his sources, the trial Judge had proceeded to infer that such a “suppression of evidence” meant only that the editor was himself the author of the impugned item. On the other hand, according to the Guild, the trial Judge in the Lakbima case adopted a directly contrary line of reasoning, pointing out that to rule otherwise would lead to “very serious consequences and do much to restrain the freedom of communication which is so essential to comfort and well-being”. These two judgements, by two Courts and two Judges on what the Guild described as basically the one and similar news item, clearly displays, the Guild further opined, the prevailing confusion in Sri Lankan Courts on the issue of the disclosure of sources. Insofar as the journalists of Sri Lanka are concerned, this, the Guild observed, amounts to the luck of the draw, in the Judiciary adopting a conservative approach (in the Sunday Times case) or a liberal approach (in the Lakbima case).Therefore, the Guild submitted that the law on contempt of court in Sri Lanka should define and limit the disclosure of sources by journalists to the four named exceptions in Section 10 of the UK Contempt of Courts Act of 1981.Section 10 of the said Act reads: “No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he/she is responsible, unless it be established to the satisfaction of the court that the disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.” The exceptions are namely: i) in the interests of justice, ii) in the interests of national security, iii) for the prevention of disorder, and iv) for the prevention of crime. The Guild however submitted that the disclosure “in the interests of justice” should be further narrowed down to “in the interests of criminal justice”, which they noted would then confine disclosure to instances where it becomes necessary to establish guilt or innocence, or in order that it helps an investigation into another offence other than the case at hand. This objection applies similarly to the interpretation vis-à-vis “in the interests of national security”, and therefore, the Guild argued, safeguards should be provided in the application of these two grounds.Section 32 of the Sri Lanka Press Council Act, No. 15 of 1973 stipulates as a general rule, that no newspaper, proprietor, printer, publisher, editor, or journalist would be required to disclose the source of information relating to any item of news published in any newspaper. Regulations gazetted under the law by way of a Code of Ethics also provides for the protection of sources.Expanding their position on criminalising contempt, the Guild elaborated that the law on contempt should be subject to the limitation that intention be a vital ingredient to any offence under the Act. Further, the Guild expressed opposition to the distinction drawn between criminal contempt and civil contempt and stated that it would view the enactment of the former as an attempt to bring in criminal defamation through the back door. Liability for contempt, the Guild further opined, should only be found where it is proved beyond all reasonable doubt that the editor/journalist wilfully and/or intentionally obstructed or tended to obstruct the administration of justice. To this end, the Guild cited the Working Paper Number 84 on criminal libel by the UK Law Commission, which states: “It is wrong that a person should be criminally liable, who does not, at the time of publication, realise that, what he/she published is in fact defamatory of someone else. i.e., that it would affect another person.”
