Focus on Rights

Why we need a law on contempt
The spectacle of a man walking out from the prison gates, garlanded and spontaneously welcomed by more than hundred and fifty ordinary citizens, followed by speeches made in defence of the freedom of expression of an individual, would be unusual in any country.

In this case, the fact that the man had been sentenced to one year rigorous imprisonment for contempt of court due to his insisting on proceeding with his fundamental rights application which he was supporting in the Supreme Court and 'speaking loudly in court', marks this instance out in a very unique way from others. This case is also distinguishable by the fact that all those well funded civil society organisations based in Colombo lifted nary a finger in aid of this same litigant.
In effect, the saga of Tony Michael Fernando's imprisonment for 'scandalising the court" on February 6, of this year, may not necessarily be over with his release from the Welikada prison this Friday.

The fact that there is currently a Parliamentary Select Committee deliberating on the manner in which the law of contempt could be codified in this country, is of course, con-incidental but entirely fortuitous, one might add.

It is striking that there are still innocents among us who continue to think, (depleted though their numbers thankfully are), that a Contempt of Court Act is not necessary for Sri Lanka. From one perspective, their position that the legal principles as regards contempt have been adequately set out in the case law in this country, is touchingly, if not a tad annoyingly, naive. On this same reasoning, India should perhaps have hesitated before enacting, particularly, their Contempt of Court Act of 1952 which, (on being found somewhat unsatisfactory), was supplanted by the Act of 1971 which regulates the present law on contempt in that country.

Again, the differing attitudes of the English courts on the issue of contempt was a prime reason why the English Act of 1981 was passed into law in order to bring English law into line with Article 6 of the European Convention on Human Rights. This was, as is widely known, consequent to a finding by the European Court of Human Rights (EUCT) that the British contempt law as declared by the House of Lords, violated Convention guarantees regarding freedom of expression.

Redress before the EUCT is available for any person who believes that his or her rights under the European Convention, (ratified by Britain in 1955 even though she accepted the enforcement machinery of the Convention only in 1966), have been infringed by a court ruling or an administrative act. If the complaint is upheld, the British government is obliged to change the law that permitted the original infringement.

The Thalidomide case illustrated a difference of opinion on contempt not only between the House of Lords and the European Court, but also between the British courts, in a sufficiently titillating manner. In issue were editorial comments made by The Sunday Times that were critical of the testing and marketing practices of a United Kingdom based manufacturer and marketer of thalidomide, a drug which had caused severe deformities in children born to women who had taken the drug during pregnancy.

The disputed comments urged the manufacturers to agree to a generous settlement and also remarked that The Times would be publishing a further article evaluating the precautions taken by the manufacturers before releasing the drug to the market.
The publication of the editorial comments took place when litigation was pending between the manufacturers and their victims before the court. Would such comments have amounted to contempt of court?

The British courts gave differing answers to this question. In the lower courts, injunction pleaded for by the manufacturers to restrain The Times from publishing the planned evaluation of their testing procedures, was granted. The lower court order was however, overturned in the Court of Appeal where Lord Denning, in classic reasoning on the manner in which contempt powers ought to be exercised, held that in the unique circumstances of a profound national tragedy, it was in the public interest that the case be publicly discussed. Private interests yield to the public interest in these instances.

This appealing reasoning was departed from in the House of Lords which held that restrictions based on the law of contempt pose not so much a conflict between the public interest and private interest but rather, a conflict between two public interests; freedom of speech and the administration of justice. The former has necessarily to give way to the latter. At that time, the House of Lords decision was criticized in Parliament as well as in the media and a Committee, headed by Lord Justice Phillimore, recommended reforms to the law of contempt.

In the meantime, the decision of the law lords went up before the European Court of Human Rights. The EUCT, dissenting from Britain's highest tribunal, stated that what was in issue is not a choice between conflicting principles but with the principle of freedom of expression which is subject to a number of exceptions that must be narrowly construed.

The EUCT concluded that the injunction restraining The Times from publishing violated Convention guarantees to freedom of expression as the thalidomide disaster was a matter of undisputed public interest and publication would not substantially distort the settlement process. In direct consequence of this decision confirming that the House of Lords ruling ran contrary to Convention rights, the Contempt of Courts Act of 1981 came into existence.

Meanwhile, with the incorporation of the European Convention into UK law by the Human Rights Act of 1998 (which came into force in October 2000), there is a greater obligation on British courts to conform to Convention rights. Thus, by necessary implication, the liberal thinking of the EUCT is slowly being infused into British case law involving the rights of individuals.

In contrast, if some of us are of the opinion that the Sri Lankan courts have demonstrated a greater consistency in laying down principles regarding contempt or in applying those principles to the facts of a case, perhaps such persons belong more in the other-other world than in present reality.

This is, after all, a country where on one occasion, a Cabinet Minister, (then Minister of Samurdhi Affairs, SB Dissanayake), was merely 'warned and discharged' by the Supreme Court for saying at a public gathering that the Government will 'close down the courts and ask judges to take long leave if they cannot do what the government wants', in distinct difference to a litigant being handed down one year of hard labour for speaking loudly in court and persisting in his application.

On the other hand, there is truth in the warning that no law can legislate against intemperate judges or discriminatory application of the law and legal principles.
Again, while a law can bequeath to the media a particular framework for writing with regard to judgements and the courts, no law can prevent the media from self-censorship with regard to matters affecting the judiciary in a manner that destroys the credibility of that newspaper or that television station.

Laws cannot replace principles of fairness, justice and respect for the rights of others. These are salutary thoughts that we would do well to ponder upon as this country's policy makers prepare legislation codifying principles of contempt of court applicable to Sri Lanka.

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