Focus on Rights

The recent exchange of words between the Free Media Movement (FMM) and the main opposition party, the United National Party on the refusal by certain newspapers in this country, to publish parts of speeches made by both the Opposition leader and the Chief Government Whip in relation to the recent judgment by the Supreme Court curtailing the privileges of former President Chandrika Kumaratunga, raises some interesting questions.

According to the parliamentarians, the non-publication of their speeches amounted to a breach of privilege consequent to which the editors were made liable to be brought before Parliament. The FMM, in turn, responded that such threats were out of keeping with parliamentary norms and reverted to an old argument put forward by some of us for quite some time; namely that the 1953 Act enshrining parliamentary privilege in Sri Lanka should be abolished.

There are points to both contentions and each in turn, gives rise to matters of overriding importance to the democratic process. On the one hand, the refusal of the newspapers to carry comments made in Parliament on the SC judgment could be characterized as nothing more than pure cowardice at the best or mala fide at the worst.

The latter point of view would, of course, mean that the non-publication was with the deliberate intention of refraining from bringing the current administration into disrepute. Whether the positive or the negative view is taken is however immaterial. Whatever it may be, the effect is the same; in a context where other jurisdictions in South Asia vigorously critique and comment on judicial decisions as well as other developments impacting on the administration of justice, in Sri Lanka, a stony silence prevails. The terrifying ogre of contempt of court is invoked at every turn to justify silence on the part, not only of ordinary citizens who may justifiably feel that the intricacies of legal debate do not lend themselves to easy comment on their part but also on the part of legal professionals and academics.

Where the media is concerned in Sri Lanka, the unprincipled attitude on the part of a number of major newspapers to the deterioration of the institution of the judiciary has been a main factor in the past few years. When the legal and judicial system was in the throes of intense controversy, some of these newspapers followed a determined line of least resistance, preferring to ignore what would have amounted to key news stories in other countries. At the very minimum, the absence of professional courts reporting was a stark fact. The manner in which certain sections of the media contributed to the decline in the independence of Sri Lanka’s judiciary should be thoroughly researched at one point in time.

In contrast, the one or two newspapers that in fact, did report on these matters, did so vigorously and courageously. And at various times, many were threatened with contempt of court. One notable example was in 2002, when there were increased disputes between Chief Justice Sarath Nanda Silva and members of the minor judiciary, who alleged that they had been unfairly dismissed from service, without a proper hearing and on political grounds. Two judges, respectively the President and the Secretary of the Judicial Services Association alleged also, in petitions filed in court, that they had been prevented from holding the Annual General Meeting of the Association. This, they contended, was due to arbitrary and coercive actions of the Chief Justice who wanted to prevent them from holding positions in the Association because they had opposed him in the past on the basis that his behaviour was not conducive to the honour and dignity of the office.

Heads of some media institutions whose journalists had reported on the latter cases and who had published/broadcast interviews with the concerned judges, were sent letters by the Registrar of the Supreme Court, making inquiries about the latter and warning that contempt of court charges may be made against them. This move was strongly resisted by the media institutions themselves who immediately responded to the letters of the Registrar with the commonly accepted affirmation that mere reportage of the disputes could not constitute contempt of court.

A defined legal framework on contempt of court, useful for both citizens and the media in order that the Sri Lankan judiciary be subjected to due and rigorous scrutiny whilst preserving basic respect for the institution itself, has now become pressing. Tussles between the judiciary and the media in the past have resulted in a range of contempt of court cases, (some understandable while others appreciably less so). The case law on contempt of court has hitherto inclined towards protection of the judiciary rather than striking a due balance between freedom of speech and safeguarding the administration of justice.

A draft Contempt of Court Act had been approved by the Bar Council of the Bar Association of Sri Lanka (BASL) in 2005 and at a time when it was relatively more activist than it is now despite the currently defensive efforts to pass resolutions condemning various aspects of the current breakdown of the rule of law. Elements of this same draft law had also been reflected in drafts put forward by the National Human Rights Commission of Sri Lanka (again, at a time when it was constitutionally constituted unlike now), the Editors’ Guild of Sri Lanka (this too at a time when the Guild was far more vocal in protecting press freedoms than it is now), all of which had been supported by civil society.

These draft laws reflect particular principles commonly accepted without controversy in the modern law of contempt. These include the principle that contempt should only be found if the impugned act is of such a nature that it substantially interferes or tends substantially to interfere with the due course of justice in active proceedings. A publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest should not amount to contempt of court if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion. They also provide that a person should not be guilty of contempt of court for publishing any fair comment on the merits of a case which has been heard and finally decided.

The necessity to prescribe fair procedures for contempt inquiries, (including contempt in the face of the court), in a manner akin to the 1971 Act on Contempt of Court in India, even with regard to contempt hearings in the appellate courts in Sri Lanka, requiring constitutional amendment if needs be, has been recognised in the drafting process.

So, when the Chief Government Whip and the Leader of the Opposition castigates the newspapers for not publishing parts of their speeches, they must be made aware that there is a context within which the media, even when driven by legitimate and professional motives, are hesitant to publish. The solution for this is not to summon editors for breach of privilege but rather to enact a Contempt of Court Act for this country containing modern standards on contempt and detailing fair procedures for holding contempt inquiries including the prohibition that a judge who proceeds against a person for contempt cannot hear that case himself or herself. Will Parliament rise to this challenge or will the recent critique of the media by parliamentarians amount to nothing more than hot air?

Hauling editors before parliament