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While not projected into headline making news as much as other draft laws such as the Anti-Terrorism Bill and the Anti-Corruption Bill, the Government’s proposed Contempt of Court Bill is undeniably of major public interest

Public impact of the Bill

Generally, Sri Lanka’s academics and lawyers alike, let alone laypersons think not once but perchance, a hundred painful times before critiquing or even for that matter, commenting on judicial decisions. Just a few decades ago, the thrust and parry of informed debate on judicial decision-making was excitingly robust. Now scarcely a miserable squeak emanates in academic circles despite Faculties and Departments of Law jostling each other, ad nauseam in the country’s public universities.

That perhaps reflects on the quality of academia, the dire mediocrity of institutions of higher learning and sadly deferential timidity on the part of those trained in the law, towards judicial authority. That said, judges themselves have oftentimes, been in the centre of controversy, from nasty impeachments of Chief Justices to judges scandalously being recorded pleading for promotions from politicians. That has not been healthy for the democratic system as we must acknowledge.

Regardless, there is no doubt that the public impact of the Contempt Bill, gazetted on 26th June 2023, is enormous. Reportedly the Supreme Court has forwarded its Determination of the Bill to the Speaker this week. On the face of it, the Bill reflects more than two decades old public pressure for a codified contempt law by industry bodies such as the Bar Association, the Editors Guild and the Organisation of Professional Associations (OPA).

Old wine in new bottles?

Its purpose is to enable the uniform application of the law of contempt to courts, tribunals or institutions and to provide for the procedure thereto. This is all to the good. Among the objects are listed, inter alia,  ‘to uphold the dignity and authority of a court, tribunal or institution’, to balance the ‘right of freedom of expression, fair comment and compliance with judicial directives’ and somewhat puzzlingly, to ‘safeguard public order, public health and morals.’

As to what extent, that quaintly Victorian notion of ‘morals’ has to do with the judiciary is anybody’s guess. Whose morals, one wonders? Is this the Government’s morals perhaps, in regard to which there is precious few to stand by? This reference is probably an unthinking transplant from old catch-all restrictions imposed by Article 15(7) of the Constitution (1978) on certain constitutional rights. Even so, the repetition of that antiquated language is unfortunate.

Substantively, the Bill defines contempt as an act or omission intending to bring the authority of a court, tribunal or institution and the administration of justice into disrespect or disregard. This also applies to interference with or causing prejudice to ongoing litigation. Specific acts include wilful disobedience to a judgment, order inter alia of court, tribunal or institution or wilful breach of an undertaking given thereto. But far more worrying are the Bill’s wide raft of clauses that go to the act of ‘scandalizing the court.’

Wide definitions of ‘scandalising’

While the notion of ‘scandalizing the court’ has not been in use for a long time in many developed jurisdictions, it would be a tad optimistic to contend that this has been discarded altogether. In England, after decades of lying quiescent, the offence was reactivated in 2012 when the Attorney General sought to move against a parliamentarian who had made forcefully critical remarks regarding a judge’s handling of a judicial review application. That prosecution was discontinued after the parliamentarian ‘clarified’ his remarks.

But there is no doubt that the offence is still a part of many legal systems globally though, as the Law Commission of England and Wales recently (interestingly) commented, this seems to be widely in use more in ‘Asia and the Pacific.’ Sri Lanka’s Contempt Bill defines that offence to include the act of ‘expressing, publishing or pronouncing’ on any matter that is not ‘substantially true’, which scandalises or lowers judicial authority (Clause 3 (2)(c)).

The act of ‘publishing’ will apply across all media (telecast, broadcast, online),  as must be warned. But this reference to ‘substantially not true’ is highly problematic. What is meant exactly by ‘substantially’? Either a matter is true or it is not.’ Also there cannot be ‘substantially true’ opinions, the very notion of which is quite absurd. As is evident, the application of ‘truth’ as a defence to contempt allegations can only arise in respect of ‘facts’ which, indeed is provided elsewhere in the Bill (ie; clause 4 which applies to the defence of ‘true facts made in good faith.’)

‘Chilling’ speech and expression

Clause 3 (2) further specifies that ‘scandalising’ in this regard will not only mean ‘due interference’ with a court proceeding. Rather, this will also apply where, when aimed at a court, a tribunal, institution, judge or judicial officer, it excites ‘disaffection in the minds of the public’ or casts ‘public suspicion on the administration of justice.’ Certainly both these extensions amount to unwarranted legislative overreach. Will speaking about judicial corruption in the public sphere attract these penalties? Where is the line drawn?

Yes, it could probably be argued that the defence of ‘true facts made in good faith ’ may be put forward as a defence if accusations of contempt go to court. But one must not also forget the toll that such trials and tribulations take on alleged contemnors. This is how the rights of speech and expression are effectively ‘chilled.’ Our drafters may be advised to take a long and hard look at India’s Contempt of Court Act (1971) where the definition of ‘contempt’ sensibly confines itself to what is accepted and proper.

It defines criminal and civil contempt in one paragraph and limits the definition of ‘scandalising the court’ to one sentence. This is not to say that all is perfect across the Palk Straits. Recently,  (unsuccessful) attempts were made by a Bench of the Court to punish a prominent advocate Prashant Bhushan for ‘scandalising the Court’ after he ‘tweeted’ remarks critical of the Chief Justice’s behaviour in 2020. In the wake of that outrageous attempt, Indian legal practitioners have been calling for the Act to be amended, incorporating procedural safeguards to ensure that a’ political’ Bench does not abuse its powers.

The Bill needs a careful rethink

Even so, we have much to learn from Indian law and practice in this regard.  The Indian Act is a mere seven pages in total and defines contempt in a succinct paragraph. In contrast, Sri Lanka’s 2023 Bill counts a long eighteen pages of which what amounts to contempt alone occupies two pages. In all fairness, the rest of the Bill relates to procedure. A vexed question exists moreover as to whether a statute of this nature can ‘limit’ the constitutional power of ‘superior courts of record’ (Article 105 (3) in this way.

This is particularly so where limits to punishment have been imposed (ie; fine and/or one year simple imprisonment for the first offence) as opposed to (unlimited) constitutional powers. But there are remarkable omissions where defences to contempt allegations are concerned. Clause 4 (1) relates to the defence of ‘true facts made in good faith’ in regard to a matter of public interest.This is only where the risk of causing impediment to a pending judgment, proceeding or order is ‘incidental.’

Clause 4 (2) protects true and accurate facts of any case or proceeding, made ‘without malice’ and also gives the ‘fair comment’ defence for concluded cases. Yet where is the defence of ‘innocent distribution’ very much a staple of contempt law across the world (see Section 3 of the Indian Act)? The Bill must be analysed in detail elsewhere due to constraints of space.

Suffice to say however that Sri Lanka needs to tread cautiously with this, else ( to adopt a hoary caution), the ‘cure may well be worse than the disease.’