Focus on Rights

Balancing competing rights

Last week's sentencing of a forty-five-year-old teacher of English, (whilst pleading his own case before the Supreme Court), to one year imprisonment for contempt of court, assumes particular significance in the legal history of this country.

The petitioner, Tony Michael Fernando, had petitioned the Supreme Court on the basis that by consolidating two fundamental rights petitions filed by him before court (which were, according to him, two separate petitions and needed to be heard separately), his right to be heard in a just and fair manner had been affected. He had further filed a motion that his petition should not be listed for hearing before the Chief Justice who had headed the Bench that had heard and dismissed his consolidated rights petitions.

It was during the hearing into this motion that Fernando had reportedly behaved in a manner not befitting before court. He was consequently sentenced by a Bench presided over by Chief Justice Sarath Nanda Silva, following which he was immediately taken to jail. The case raises particular issues in Sri Lanka regarding both the substantive rationale underlying contempt of court powers as well as the procedure that should be followed in exercising such powers.

Contempt of court, as was once famously remarked, exists not for individual judges but for the due administration of justice. It is, in that sense, one of the most potent instruments that can be used by a court within the classic justification that such powers are essential in order to preserve public trust in the judiciary and because of the reticence required for it to perform its arbitral role.

However, as the use of contempt powers involves a certain measure of judging in its own cause, these powers are exercised sparingly by courts. When, in fact exercised, they involve a careful balancing of the competing rights, (whether of expression or access to court), of an individual and the need to protect the integrity of an institution. The primary principle, in this sense, is that there must be substantive interference with the due administration of justice. Proportionate punishment must be imposed if contempt is, in fact, found. The whole must be subject to a procedure that has some, if not all the elements of right to a fair trial.

These principles are preserved in essence even if the case concerns instances where the orderly progress of judicial proceedings is disrupted, possibly requiring quick and effective judicial intervention in order to permit the administration of justice to continue unhindered. Thus, relevant procedures in Sri Lanka, expressly laid down as far as subordinate courts are concerned, stipulate that though an accused person may be forthwith committed to jail for severe interference with court proceedings, the matter does not end there.

Instead, the Civil Procedure Code provides (from Section 792 onwards) that even in the case of summary procedure in cases of contempt, a day shall be appointed for the hearing of the charge and consequent to the court asking whether the accused person admits the truth of the charge, shall record all evidence, including the minute of the judge as to the person's behaviour at the time that the contempt was allegedly committed. Thereafter, if the person is found guilty, a conviction has to be made out, reciting the reasons for such conviction and containing an adjudication of the material facts of the accused person's behaviour and language as cause the same to amount to contempt of court.

While this is so as regards the subordinate courts, contempt of court powers of the appellate courts is presently governed by Section 105(2) of the Constitution which empowers the Supreme Court as well as the Court of Appeal to punish for contempt of itself, whether committed in the court or elsewhere. This provision, taken in conjunction with Article 136 which specifies the rule making powers of the Supreme Court, are the only provisions that impact on the rationale and procedure as far as contempt of court is concerned in the appeal courts.

The comparable situation, as far as the higher courts are concerned is very different, in India, for example. Here, Article 129 of the Indian Constitution empowers the Supreme Court of that country to be a court of record and to have all the powers of such a court, including the power to punish for contempt of itself. Like in Sri Lanka, Article 145 of the Indian Constitution also prescribes rule making powers of the Supreme Court but in somewhat narrower terms.

The whole is governed by a separate Act on contempt enacted as way back as 1971 which defines contempt in its various categories and lays down an exhaustive procedure even for contempt in the face of the court. Thus, an accused person is furnished with a charge and evidence is heard on the charge. In addition, there is also a right, on appeal and if it is practicable and in the interests of proper administration of justice, to be heard before a different court than the court which the alleged contempt occurred.

The need for such safeguards is self evident. In one of the older but most beautifully illustrative commentaries on what absurdities can sometimes occur in the name of safeguarding the due administration of justice, the Privy Council, on February 28, 1951, set aside an order of the Supreme Court of Sri Lanka convicting then member of the House of Representatives, A. Reginald Perera for contempt of court. Mr Perera had been cited for contempt for relying on statements made to him by some prisoners and a jailor whilst on a prison visit, that some prisoners were not given the opportunity to be present in court when their appeals against convictions were being heard. The notation made to that effect by Mr. Perera in the Prison Visitors' Book, which was forwarded by the Acting Commissioner of Prisons to the Registrar of the Supreme Court, was determined to be contempt of court. A request made by Mr. Perera for further time to obtain documents not in his possession and to avail himself of further legal advice, was refused. He was sentenced to pay a fine of Rs. 500, in default of which, to undergo six weeks rigorous imprisonment. In appeal by special leave from an order of the Supreme Court to the Privy Council, Lord Radcliffe who delivered the judgement, (sitting with Lord Simonds and Lord Morton of Henryton), had no hesitation in setting aside the conviction (Perera vs the King, 1951).

His reasoning was admirably succinct. Contempt of court can only come into play if there was something calculated to obstruct or interfere with the due course of justice or the lawful process of the courts. In that case, while it was right and proper that the public should not be under the misapprehension that prisoners were denied their rights, Mr. Perera too had his rights. He was acting in good faith and had only commented on what he felt was an improper prison procedure in the Visitors' Book besides writing to the responsible Minister regarding this, without airing his views in public in a scandalous manner.

The fate of the hapless Mr. Perera amounts to a somewhat more bizarre than usual instance of contempt powers being used in the history of this country. On the other hand, there have also been cases where the case for intervention by court to safeguard the administration of justice has been stronger. Many of these cases involve wilful publication of false and fabricated material. Here again though, contempt has been used unwisely as when the Criminal Justice Commission (Exchange Control) sentenced a journalist in the early seventies for commenting on the dress code imposed by the Commission on its witnesses as being out of keeping with modern trends. The journalist who was sentenced to six months imprisonment, in fact, became seriously ill as a result and was released prematurely.

Our history thus demonstrates a mosaic of judicial attitudes with regard to which acts, whether in or out of court, are so outrageous as to attract the awesome authority of contempt powers. There has been agitation in this country for quite some time to enact an Act on the lines of the Indian Act, (and the Contempt of Court Act in the United Kingdom for that matter), defining what amounts to contempt of court. However, the possibility of laying down procedures for the exercise of contempt powers is more problematic given the wider ambit of the rule making powers of the Supreme Court in our Constitution. This has led to the view that a constitutional amendment may, in fact, be necessitated if such procedures are to be specified. We have yet to see what would come out of this agitation.

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