The Supreme Court’s striking down of Clause 2 (e) of the ‘Contempt of a Court, Tribunal or Institution’ Bill, which had brought in safeguarding ‘public order, public health and morals’ as an object of the Bill, is a relief.

By

Kishali Pinto -Jayawardene

The Supreme Court’s striking down of Clause 2 (e) of the ‘Contempt of a Court, Tribunal or Institution’ Bill (gazetted on 26th June 2023) which had inexplicably brought in safeguarding ‘public order, public health and morals’ as an object of the Bill, is a relief.

Why are obviously bad clauses included in Bills?

This is so given that law-making in Sri Lanka seems to have been consigned to the devil’s playground. In its determination communicated to the Speaker recently, the Court found, quite sensibly, that no rational nexus could be established between ‘public order, health and morals’ and the purpose of the Bill. It was observed that this over-expanded the scope of the Bill, making the whole ambiguous. That is to state the obvious, I might say.
But the question arises as to whose bright idea was to include these completely inappropriate grounds in the first place? What if, for example, by some natural happenstance, the Bill had not been challenged in the Court? We would have had these nonsensical clauses passed into law in the House. This is not an unlikely scenario, to be clear. For example, many clauses in the country’s Personal Data Protection Act, No 9 of 2022 might have benefited from a meticulous scrutiny by the Court.

Unfortunately, the moment passed with no challenge to that Bill filed within the constitutionally prescribed time limits. These are the evil consequences that ensue when civic action/media groups and public interest litigators are caught yawning in circumstances where judicial oversight is of the utmost importance. As a result, we are inflicted with laws which cannot be rectified later for Sri Lanka has not conceded the power of judicial review to its courts.


Legislative competency to enact laws codifying contempt

This is so even if it is an atrociously bad statute or wreaks havoc with existing legal frameworks. Such sorry examples litter our recent history of law-making. So we return to a question oft asked in these column spaces, why are draft laws so shoddily prepared and who takes responsibility for this?

The Legal Draftsman’s Department, the Attorney General, the Ministry of Justice or what state agency?

Where the Contempt Bill is concerned, the Bench’s striking down of Clause 2 (e) was just one facet. Generally, the legislative competence of Parliament to make laws on contempt of court was accepted. A somewhat over ambitious argument had been made by petitioners relying on Article 105 (3) of the Constitution. That Article contains the power of superior courts of record in regard to contempt.

Article 105 (3) was contended to be in danger of being ‘suspended’ by what would be an ordinary Act of Parliament. The argument did not find judicial favour. The Court’s ruling on other clauses of the Bill was largely sympathetic in addressing the fear that rigid definitions of what constitutes ‘contempt’ may unconstitutionally trespass on free speech.

Clause 3 (1) (b) had defined contempt as, interalia, acts that ‘interfere with, or cause prejudice to the judicial process in relation to any ongoing litigation.’

Discussions in the public interest re ongoing legal proceedings

This was recommended to be qualified by the insertion of ‘grave’ when referring to an act of ‘prejudice.’ This revision is more than merely notional. Case law in the Commonwealth is particularly enlightening in relation to how ‘substantial likelihood of prejudice’ is interpreted.

Several cases relate to how ‘sub judice’ applies in highly contested circumstances, one example is the United Kingdom where heated disputes have gone up to the European Court of Human Rights.

The principle here is that, bona fide public discussion of controversial matters of general public interest cannot be gagged merely due to contemporaneous legal proceedings. The qualification of the word ‘grave’ to the term ‘prejudice’ (effectively importing the element of ‘substantial likelihood) in the Bill is therefore not incidental.

As much as in regard to Clause 3(1)(b), that revision must take place in respect of Clause 3 (2)(c)(ii) which has similar impact.

This is all the more so as traditionally, Sri Lankan courts have preferred to take a conservative view that statements which ‘might affect’ or ‘are likely to affect the outcome of a pending case’ will establish the offence of contempt (see In Re Garuminige Tillekeratne, 1991).

A potential change in that far too restrictive attitude is all to the good. That will be helped by the ‘good faith’ and ‘accurate facts’ defences set out in Clause 4.

Vagueness of definitions of ‘scandalising’

Replacing imprecise terms such as ‘substantially not true’ in regard to acts which may constitute contempt by, as the Court termed it, the more ‘definitive’ term of ‘false’ will also add clarity in the working of the law. That apart, it was affirmed that the offence of ‘scandalizing’ the Court (though not alive and kicking vigorously in some jurisdictions) cannot be still dismissed as ‘obsolete.’

While that is rightly so, it would have been encouraging if the Bench had taken stronger note of concerns raised regarding the vagueness of terms such as, exciting ‘disaffection in the minds of the public’ or casting ‘public suspicion on the administration of justice’ (Clauses 3 (2)(e), (ii) and (iii) being encompassed within the reach of ‘contempt.’

The actual working of the law will no doubt see the emergence of the contexts in which the offences may be held to arise. Suffice it to say that terms such as ‘disaffection’ and ‘suspicion’ are not part of the offence of ‘scandalising the Court’ even in jurisdictions where the offence survives such as in India. ‘Scandalizing’ in that country has been linked to the notion of the ‘authority of the judiciary.’

Need to clarity and not confusion to prevail

That has a more limited meaning than the terms used in the Bill. Attempts made by the Supreme Court of India to expand that term in recent years (ie; the Prashant Bhushan case) have been met with vigorous public resistance.

Where Sri Lanka’s Contempt Bill is concerned and in regard to procedures relevant to inquiries into contempt, several amendments proposed by the Attorney General were marked before Court.

Notably, a great deal of attention was devoted to Clause 11 which restricts the sentence to be imposed for contempt of court to a fine not exceeding rupees five hundred thousand or to simple imprisonment for a period not exceeding one year or to both for an offence with successively harsher terms for a second offence. Article 105 confers unrestricted powers on superior courts of record in that respect.
While a fuller discussion of these issues must await a different space, the Supreme Court’s finding was that Clause 11 gave rise to inequalities in sentencing. This defeated the purpose thereby which was to bring about uniform sentencing. The Clause was accordingly held to be inconsistent with Article 12(1) requiring a two-thirds majority in Parliament to be passed into law.
The question as to how that inconsistency may be rectified, was (interestingly) not addressed.

Legal tangles aside, the dignity and the authority of the judiciary do not rest between the pages of statutes. Our history in regard to the use of contempt has not been entirely reassuring notwithstanding the sanguine belief to the contrary.

That reminder must be kept in mind as we proceed with the codification of Contempt of Court powers decades after our neighbours in South Asia.

Certainly it would be a supreme irony if a law purportedly to ‘codify’ contempt in Sri Lanka leads to greater harshness if not confusion in its working thereto.

Courtesy: Sunday Times