Editorial

The Joint Opposition (JO) is all but flogging a dead horse calling for Provincial elections in the midst of so many other outstanding issues in the country – knowing only too well that the chances of these elections taking place are as unlikely as ‘a snowball’s chance in hell’.

They ought to know, if they don’t already, that a bigger election is scheduled any time after January 8 next year, but not later than January 2020 and therefore, given the bitter lesson this Government received from the electorate at the recent Local Government elections, it is not going to chance another defeat so close to the impending Presidential and/or Parliamentary poll.

A new legal theory has also sprouted this week that the populist former President Mahinda Rajapaksa can contest another Presidential election adding to the worries of the incumbents in office. Whether this interpretation will stand the scrutiny of a Constitutional Court, if ever tested, is another matter.

The entire thrust of the JO’s latest campaign overdrive for Provincial Council elections is a short-sighted selfish approach to a national issue – which is whether the Provincial Councils system is in fact, the best form of devolution for the country seeing how it has worked for 30 years on the trot. The JO merely wants a stepping stone to propel its wider campaign for an electoral victory at the larger national polls to follow. In short, a better footing to return to power; politics before country.

The entire exercise of the JO therefore revolves around elections – which the Government is trying to avoid by hook or by crook so that it could avert embarrassing itself in the face of a national election. Neither side seems to care two hoots whether Provincial Councils serve man or beast in the country.

The Northern PC, for which the Provincial Council system was originally introduced in 1987 amidst virulent opposition from those now clamouring for elections to it, is in total disarray. The Chief Minister has sacked his Ministers who have got stay orders from Court; the Governor says they have more Ministers than they could have under the law; and the party (TNA) that runs the Council is willing to postpone elections to the Council to get rid of the Chief Minister.

In the Western PC, they are purchasing a chair for councillors to sit on costing Rs, 650,000 each. In other PCs “study tours” abroad are the first thing undertaken by all the parties except the JVP. All they seem to do is duplicate the work of the Central Government, overlap with the work of Local Government councils, and merely pass resolutions which mean nothing to the people. Next week, Parliament is to debate the report of the Delimitation Committee that has carved out electorates within the PCs, so the emphasis is still on elections rather than on geographic prudence. It should not be an exercise for merely having elections and for political parties to flex their muscle and show off their voter base.

It is now time for the Central Government to undo the mistake of 1987 and rethink devolution of power in a Sri Lankan context; rethink re-introducing District Councils, or something that is genuinely in the best interest of the people, not something we have to live with merely because it was forced down the nation’s throat.

A case for Contempt of Court Law

The recent string of Contempt of Court cases against some public persons, and the recent conviction of a vociferous monk draw attention to the absence of a codified law on the subject.

Not that the conviction of the monk was bad in law. He was found guilty of disrupting court proceedings. In fact, he was ‘trespassing’ on a court case in which he had no role and tried to intimidate the Magistrate. His behaviour was found to be “contemptuous and coercive”. It would appear that the Courts have finally done what the monk’s seniors have been unable to do in restraining him.  Similarly in the media spotlight, there are three others facing the music of Contempt of Court; a lawyer, a Chief Minister and a ruling coalition MP.

A Contempt of Court Law is a longstanding requirement in the country so that the public know the parameters of what is Contempt. In some cases, they should be obvious to any reasonably prudent citizen. “Scandalising Court” is what is at the root of Contempt, but what really amounts to “Scandalising Court”?

The Law Commission, the Bar Council and The Editors’ Guild have provided drafts towards such a law that is found in Britain, India and many other countries, but not in Sri Lanka. The media have expressed concern, especially over the protection of their sources but with exceptions where Court can demand the naming of a source. We have had the instance where two High Court judges hearing almost the identical case in separate courts gave diametrically opposite interpretations to the protection of sources.

In the 1970s, a deputy editor of the Daily News was sentenced to six months when he criticised the Criminal Justice Commission (Foreign Exchange) which had required witnesses to be “properly dressed”. Was that ‘Scandalising Court’? In 1991, a newspaper was found guilty of publishing an Opposition MP’s comment on an ongoing Presidential election petition.

And so, following a demand of the Colombo Declaration on Media Freedom and Social Responsibility of 1998 calling for a Contempt of Court Law, the then UNP Government appointed a Parliamentary Select Committee chaired by the then Opposition MP, Lakshman Kadirgamar PC to draw up such a law. Unfortunately, that Parliament was prematurely dissolved in 2004 with the Committee’s work half done and never was it resumed. The Right to Information Law that suffered the same fate then, however, was revived by this Government and passed into law, but not the Contempt of Court Law.

What are the avenues through which the public can scrutinise, comment and dissent with judicial pronouncements — an inherent aspect of a vibrant democracy? Fair criticism of judgments is part of the democratic commitment to free speech. Truth is a valid defence to contempt in many countries. But these principles are not protected with certainty in Sri Lanka. Recent public discussion over judges recusing themselves from hearing particular cases has led to calls for a Code of Conduct for the judiciary itself.

Judges and legal institutions cannot claim exclusive rights to be exempt from public scrutiny. The Government must look at enacting a Contempt of Court Law that protects the due administration of justice when individuals behave ‘scandalously’ but at the same time protects the public against the capricious and arbitrary wielding of contempt powers that muzzle the right to dissent and the right to know. Rather than the simplistic construct of an all-powerfully indignant judiciary on one side versus a cowering populace on the other, a more complex far reaching and enlightened discourse on Contempt of Court must evolve.