Precisely defining contempt of court, an arduous task: SC

• The case Hee Jung Kim alias Kim Hee Jung and Another vs. Don Bandumali Jayasinghe
• Apex Court cites multifaceted nature of offence as reason

BY Ruwan Laknath Jayakody

In a case decided earlier this month, the Supreme Court (SC) explained that since the offence of contempt of court is multifaceted, it is a difficult task to formulate a precise definition of such.

This point was made by Justice Buwaneka Aluwihare PC, with Justices Murdu N.B. Fernando PC and Preethi Padman Surasena in concurrence, in the case of Hee Jung Kim alias Kim Hee Jung and Another vs. Don Bandumali Jayasinghe (SC Contempt Number 03/16) which dealt with contempt of court in the context of a party making false statements to the court, intentionally and/or wilfully.

Justice Aluwihare pointed out that in English common law, the offence of contempt of court involves an act of commission or omission which is conduct that is calculated to interfere with the due administration of justice, a definition best exemplified by Lord Arthur Geoffrey Neale Cross in the UK House of Lords case of the Attorney General (AG) vs. the Times Newspapers Ltd. and Lord William John Kenneth Diplock explaining in the House of Lords case of the AG vs. Leveller Magazine Ltd., that even though criminal contempt of court may take multifarious forms, the shared common characteristic involves interference with the due administration of justice. Lord Cyril John Radcliffe adds in the Privy Council case of Arthur Reginald Perera vs. The King that the impugned act could be a writing published with the intent to bring a court or judge into contempt or to lower his/her authority or to obstruct the due course of justice or the lawful process of the courts. The ultimate victim of such an offence, Lord Diplock observes, is justice, in and of itself.

Further, according to Lord John Francis Donaldson in the Court of Appeal case of the AG vs. Newspaper Publishing PLC, the application of the law of contempt, which is based on the broadest principle that courts cannot and will not permit interference with the due administration of justice, is universal.

Returning to the instance case, Justice Aluwihare noted that courts adjudicate on the rights of litigants, based on the material including evidence placed before it and that since the court has to necessarily rely on such, the receipt of accurate and credible evidence has a significant bearing on courts arriving at correct decisions.

With regard to making false representations to courts, Justice Aluwihare further noted: “Judges do not have personal knowledge of the cases brought before them, and, in fact, are not supposed to have such personal knowledge. Therefore, to mete out justice, judges must depend on the documents and testimonies of individuals that are submitted to the court. As such, if a document or testimony is false, then there is every likelihood of injustice resulting due to the falsity of the material before the court.”

Falsehoods and untrue statements by a witness, including the suppression of facts, contradictions, inaccuracies, baseless allegations, and blatant lies, result in the court being misled up the garden path due to deceit. Justice S.C. Sen emphasised in the Indian SC case of The Secretary of the Hailakandi Bar Association vs. the State of Assam and Another with Chief Justice (CJ) Aziz Mushabber Ahmadi joining that when a person misleads a court, it amounts to an interference with the due course of justice by attempting to obstruct the court from reaching a correct conclusion.

Therefore, penal sanctions are visited when false evidence is given, in order to ensure both the due administration of justice and to prevent the adverse impact on the credibility of the court and the lowering of the reputation of the court as an impartial adjudicator of disputes which would result from the failure on the part of the courts to duly administer justice.

In Volume Two of the Penal Law of India, jurist Dr. Hari Singh Gour described giving false evidence as the practice of a fraud upon a court by making it believe as true that which the deponent does not believe to be true, adding that this offence also concerns the due discharge of duties by public servants.

In Sri Lanka, the same is dealt with in the Code of Criminal Procedure Act No. 15 of 1979 as contempt of court under Section 449, which deals with summary punishment for perjury in open court, and the offence carries a summary sentence from a High Court, the Court of Appeal, or the SC to a term of simple or rigorous imprisonment of a maximum of two years or the imposition of a maximum fine of Rs. 1,000, or if the summary sentencing is given by a lower court, a term of imprisonment of a maximum of three months or the payment of a maximum fine of Rs. 500. Section 188 of the Penal Code, which deals with presenting false evidence, defines such as: “Whoever, being legally bound by an oath or affirmation, or by any express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he/she either knows or believes to be false, or does not believe to be true, is said to give false evidence.”

The Constitution vests the superior courts (the Court of Appeal and the SC) with the power to punish for contempt of court, and in Article 105(3), the SC has the inherent jurisdiction and power to punish for contempt when it occurs within the said court or elsewhere, with a term of imprisonment and/or a fine that it deems fit. Moreover, Chief Justice Sarath Nanda Silva PC in the Matter of D.M.S.B. Dissanayake (SC Rule 1/2004, SC minutes of 7 December 2004) held that the SC necessarily attracts the power to take cognisance of and punish offences of contempt. This inherent jurisdiction and power, Justice Aluwihare explains, is a vital adjunct in order for the rule of law to be safeguarded. Also, this power, Justice Aluwihare points out, if properly exercised, can have a salutary influence on the process of the administration of justice.

Justice Aluwihare PC mentions that there are three vital elements that are required in order to establish whether an individual has given false evidence. These include a) the legal obligation to state the truth, which arises out of the binding nature of an oath, an express provision of the law to state the truth, or a formal declaration required to be made by the law; b) the making of a false statement; and c) the belief in its falsity.

Therefore, Justice Aluwihare reiterated that making false representations all the whilst knowing them to be false and giving evidence knowing it to be false in the same manner and thereby attempting to mislead the court with clear intent and calculated conduct that poses an actual risk to the due administration of justice, amounts to contempt of court as it constitutes a direct interference with the administration of justice.

Such conduct was described by the SC in conclusion, as an attempt to make a mockery of the law as well as courts in a bid to achieve personal objectives.