Sri Lanka government proposes to codify an outmoded Contempt of Court law
By Staff Reporter
Sri Lanka government has , on June 27, publicized a proposed law titled, the Contempt of a Court, Tribunal or Institution Bill, which outlines the procedure for dealing with contempt of court cases, including issuing a rule to the person charged, allowing them to make a defense, and determining the punishment. The Act, if passed, grants the Courts of First Instance the power to punish contempt of court and specifies the maximum penalties. It also allows for appeals to and from the Court of Appeal in contempt cases.
Offences
The bill mentions that contempt of court can include disobedience to any judgment, decree, direction, order, writ, or other process of a court, tribunal, or institution, willful breach of an undertaking given to a court, tribunal, or institution, expressing, pronouncing, or publishing any matter that is not substantially true, and other acts that scandalize or lower the judicial authority.
The contempt of court procedure outlined in the Bill
- The person alleging contempt of court can cause a rule to be issued, giving written particulars of the contempt and fixing a date for the hearing of the charge.
- On the date fixed for the hearing, the person charged with contempt of court is given an opportunity to make their defense or present evidence.
- Pending the determination of the charge, the Supreme Court or the Court of Appeal may direct that the person charged be detained or released on bail with specified conditions.
- If the Court of Appeal takes cognizance of contempt of a Court of First Instance, it shall hear and determine the matter according to the procedure set out in section 9.
- Motions alleging contempt of court can be filed by the Attorney-General or any other person, and must set out the particulars of the alleged contempt.
- After pursuing the motion and establishing a prima facie case of contempt, the Supreme Court or the Court of Appeal can issue a rule, giving written particulars of the contempt with which the person is charged.
- The court may detain the person charged or release them on bail with conditions.
The Court of First Instance has the right to punish for contempt of itself, regardless of whether the contempt occurs in its presence or outside of it. On the other hand, the Court of Appeal has jurisdiction to hear and determine cases of contempt of a Court of First Instance, tribunal, or institution, but only when the contempt occurs outside the presence of the Court of First Instance.
Punishments
A person found guilty of contempt of court may be liable to a fine not exceeding rupees five hundred thousand or to simple imprisonment for a period not exceeding one year or to both such fine and imprisonment, and on a second or subsequent conviction, such person shall be liable to a fine not exceeding rupees one million or to simple imprisonment for a period not exceeding two years, or to both such fine and imprisonment.
How does it affect freedom of expression ?
In number of advanced democracies, for instance United Sates, Canada and United Kingdom, the contempt of court law is rarely used, on the basis that it should be traded off for upholdng people’s freedom of expression. For instance, in UK the offence of scandalizing court has never been used against an individual or media since 1931, and in US it is almost a dead letter. Several leading judementts have held that the restraints placed on the freedom of expression ae not necessary in a democratic society for maintaining the authority of the judiciary.
The proposed contempt of court bill has the potential to significantly impact freedom of speech in the Sri Lanka. Contempt of court refers to any action that disrespects or undermines the authority, dignity, or integrity of the court or interferes with the administration of justice. Liberals view that, while it is important to maintain respect for the judiciary and uphold the rule of law, it is equally crucial to strike a balance between protecting the courts and safeguarding individuals’ right to freedom of speech.
One of the main concerns regarding the proposed bill is that it could be used as a tool to stifle criticism and dissent against the judiciary. Freedom of speech is a fundamental human right that allows individuals to express their opinions, ideas, and beliefs without fear of censorship or punishment. It plays a vital role in promoting transparency, accountability, and good governance in any democratic society.
If the contempt of court bill is enacted, it could potentially be misused to suppress legitimate criticism and investigative journalism. Journalists and media organizations may hesitate to report on matters related to the judiciary due to fear of being charged with contempt. This could lead to self-censorship and a chilling effect on freedom of expression.
Moreover, the vague language used in the proposed bill raises concerns about its potential misuse. Ambiguous terms such as “scandalizing the court” or “interfering with judicial proceedings” can be interpreted subjectively, leaving room for abuse by those in power. The lack of clear definitions and guidelines may result in arbitrary application of the law, leading to a climate of uncertainty and fear.
Another aspect that could impact freedom of speech is the potential for excessive penalties under the proposed bill. If individuals are subjected to severe punishments for expressing their opinions or criticizing the judiciary, it could have a deterrent effect on free speech. The fear of facing imprisonment or hefty fines may discourage people from engaging in open discussions or debates about matters concerning the courts and of public interest.
It is essential to note that while freedom of speech is a fundamental right, it is not an absolute right under the Constitution of the country. There are restrictions placed on speech, such as incitement to violence or hate speech, which are said to be necessary to protect public order and the rights of others. However, iberal think tanks argue that any limitations on freedom of speech must be narrowly tailored, proportionate, and necessary in a democratic society.
It is also opined by many critics that, to strike a balance between protecting the judiciary and upholding freedom of speech, it is crucial for the proposed contempt of court bill to include clear and precise definitions of contemptuous behavior. It is argued that the law should also establish robust safeguards to prevent its misuse and ensure that penalties are proportionate to the offense committed. Additionally, mechanisms for independent oversight and review should be put in place to safeguard against arbitrary application of the law.
