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Sub judice and law of contempt in SL: Lack of statutory recognition for constituent elements, SC

Although contempt of court is recognised as an offence, its constituent elements have not received statutory recognition, and therefore what would constitute contempt in the eyes of the court would vary according to the facts and circumstances of each case, the Supreme Court (SC) observed.

The SC noted thus in the cases U.N.S.P. Kurukulasuriya v. Sri Lanka Rupavahini Corporation (SLRC) and Others (SC/FR/556/2008) and J.K.W. Jayasekara v. SLRC and Others (SC/FR/557/2008), where the judgement was penned by President’s Counsel (PC) and Justice (J) Buwaneka Aluwihare and was joined by Priyantha Jayawardena PC J. and L.T.B. Dehideniya J.

Dealing with the issue of sub judice (the term is derived from the Latin phrase adhuc sub judice lis est, which means “the matter is still under consideration”) or commenting on ongoing legal proceedings, Aluwihare PC J. noted that it is one form of contempt of court recognised in Sri Lanka.

However, Aluwihare PC J. pointed out that in common law jurisdictions, contempt of court operates as a safeguard mainly regarding pending judicial proceedings in which the opinion of a jury or the veracity of witnesses may be affected by comments or opinions expressed publicly.

In this regard, the SC cited the High Court of Justice – Chancery Division case of Vine Products Ltd. and Another v. Daily Telegraph and Another where D.B. Buckley J. explained: “It has generally been accepted that professional judges are sufficiently well equipped by their professional training to be on their guard against allowing a prejudging of the issues to influence them in deciding the case.”

Fundamental rights (FR) applications, Aluwihare PC J. noted, pivot on the application of the law, and judges are in general, immune to material in the public domain that may create bias.

The SC in Re Garumunige Tilakaratne (the decision written by Mark Damien Hugh Fernando PC J. and joined by Dr. Anthony Ranjit Bevis Amerasinghe J. and Ranjith N.M. Dheeraratne J.) observed that “contempt of court is an offence purely sui generis and one that is vaguely defined”.

The approach with regard to the application of Article 14 (1) (a) of the Constitution (the freedom of speech and expression including publication) and the limitations that apply (in the interests of racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation, or incitement to an offence), cannot, as Aluwihare PC J. notes, be uniform, and therefore, the considerations as to its application should necessarily vary, taking into account the type of the media that it concerns, be it print, radio, or television. The reason, Aluwihare PC J. explains, is that, in the case of the print media, it may allow the writer or the editor a comparatively wider margin of time and degree of authority in controlling the content of a particular news item or column while the same may not be available to a producer or a broadcaster of a live television programme.

Aluwihare PC J. noted furthermore that the SC does not wish to limit the platform for adverse opinions and varied perspectives by setting a standard that would cause the media to steer clear of providing the opportunity for risky views to be expressed.

“Sub judice is a legal safeguard and media institutions should not be allowed to use a safeguard as a cloak to stifle the citizen’s right to freedom of expression guaranteed by the Constitution or as a cover to evade responsibility for circumscribing the freedom of speech and expression. Sub judice is not meant for justifying autocratic and stifling conduct relating to the freedom of expression. These safeguards are for the purpose of creating an equal marketplace of ideas with minimal risk of polarisation. Preventing views that are either disagreeable or disadvantageous to the broadcaster or the agenda that they seek to further, from reaching the public, impinges on the citizen’s entitlement to exercise the freedom of expression. Although the SC’s power to strike down acts or omissions that may lead to the infringement of FR is expressly with regard to executive or administrative action, the courts as an organ of government is mandated by Article 4 (d) of the Constitution to respect, secure, and advance the FR declared and recognised by the Constitution. Therefore, it is not desirable for even a semi-private body to be allowed to make inroads into FR, in the absence of express prohibitions.”

Meanwhile, on the matter of commenting on ongoing legal proceedings, ARTICLE 19: The Global Campaign for Free Expression in a submission on contempt of court in Sri Lanka with recommendations for codification, noted that in common law jurisdictions, perhaps the most significant role of contempt of court law is the application of the sub judice rule: No one should interfere with legal proceedings which are pending. In practice, the Campaign notes, this rule is usually used to prohibit the publication of matters which are likely to prejudice the right to a fair trial when legal proceedings are pending, or in a more colloquial sense, to prevent “trial by media”.

The rationale behind this rule, the Campaign points out, was explained in the House of Lords case of Attorney General v. Times Newspaper Ltd., where Lord W.J.K. Diplock (Lords J.S.C. Reid, J.W. Morris, J.E.S. Simon and A.G.N. Cross were also part of the bench) stated: “The due administration of justice requires first that all citizens have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly, that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to the law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed, is contempt of court.”

Examples of possible violations of the sub judice rule are, the Campaign adds, a publication which abuses or pressures a party to a proceeding to the extent that he/she is deterred from attending court; a publication about matters which are not admissible as evidence in court, and may create bias in a jury, such as previous convictions of the accused which are not relevant to the case at hand; or a publication which prejudges the issues in a case, such as declaring that the accused is guilty before the trial is over.

The primary target of such restrictions is to prevent possible bias to jurors, or in some cases witnesses, owing to the belief that such individuals may be subject to influence, in particular from the media reporting on a case, the Campaign elaborated. Judges, on the other hand, the Campaign posits, are normally considered to be sufficiently professional and objective to withstand such reporting.

In Sri Lanka, the Campaign opines, the concept of sub judice has been used in the past, not only to limit the freedom of the media in reporting and commenting on matters relevant to ongoing court proceedings, but sometimes to curtail legitimate public interest and discussion, and also to stifle discussion about the Parliament. A case in point, according to the Campaign, is the abduction and killing of journalist Richard Manik de Zoysa, whose body was found on the beach in Moratuwa in late 1989. The parliamentary discussion of the whole episode, even after the magisterial proceedings had been concluded, was prohibited on the grounds of sub judice as the suspect police officers had filed civil actions claiming damages from the late de Zoysa’s mother.