By Basil Fernando.
The purpose of the proposed Bill on the Contempt of Court is to criminalise the acts which may be considered to constitute the offence of contempt of court and to punish it. Clearly, this proposed Bill is meant to create offences under the contempt of court and therefore the purpose is to create criminal offences.
In creating criminal offences there are set legal processes and legal provisions binding in all instances where offences are created and also when the offences are investigated, prosecuted and adjudicated.
Once an offence is created the ordinary course of law that prevails in the country takes over and these processes should be followed. That is the very meaning of the equality before law and this provision is recognized by article 12(1) of the constitution. Thus, a person accused and dealt with under the law for contempt of court should be treated first as a suspect, then as an accused and finally convicted as a convicted person all within the general framework of the law that prevails within the country.
Besides, the equality before law as recognized under article 12(1) , this is also based on the very notion of the rule of law. In a succinct definition of rule of law, former Lord Justice Tom Bingham has summed up this notion as follows: “all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”. Thus, all the obligations and the entitlements of everybody emanates from the same principles which are equally applied to all.
No clear definition
From this it follows that like any other criminal offence contempt of court as an offence should have a clear definition. As can be demonstrated from every offence in the penal code and other offences created under other statutes, there is always a clear definition which gives the boundaries within the scope of which the crime is understood and also prosecuted and adjudicated.
The definition of the crime sets the limits for the investigators into any complaints relating to commission of such a crime to compare the evidence available and to assess whether requirements of the definition have been met by the kind of evidence that is available. Thus, the investigators into crime is strictly bound to conduct his operations within the framework of the definition of the crime. This first of all implies, there is a definition of the crime.
The task of the Attorney General in particular is to examine the available evidence and to assess whether there is a likelihood of conducting a successful prosecution in order to prove the elements of the crime as enshrined in the definition of the crime. If, no such definition exists, the prosecutor has no jurisdiction to go into the matter at all.
Responsibility of the judges
The same is true about the courts and the judges. A trial judge when conducting a trial on crime will strictly confine him or herself to the legal limits within the definition of the crime. All other matters will be excluded from all trial proceedings. The presiding judge will ensure that nothing outside the scope of the definition of the crime tried will be brought into the proceedings. And in doing so, he will also be bound by the laws relating to criminal procedure and also evidence ordinance. All such trials are only possible when a definition of crime is available.
The defense of the accused also confined within the framework of the definition of the crime. The accused may take up the position that if there is no definition of the crime, that he is unable to answer the charges. His duty in offering defence is determined by the legal definition of the crime on which he is charged. He has a right to know the charge and its legal definitions, he has the right to get assistance of lawyers, in order to have such definitions and all legal matters explained to him and also articulate his own position in terms of this legal framework.
Where a definition clearly exists the accused can prove his position by challenging any of the important aspects of the elements of the crime. If he successfully challenges any of these aspects, he would be discharged of any criminal liability. Even if he were to be convicted mistakenly, he would have a right to appeal and in the appeal, he could take up matters about the definition of the crime under which he is charged and as to whether the prosecution has discharged its duties of proving all the essential elements of the crime against him through legally valid evidence. If any of this fails, he has right to be discharged.
Draft Contempt of Court Bill
All these matters are important because in the draft Contempt of Court Bill, there isn’t any clear definition or in fact any definition at all of what is called the ‘crime’ of contempt of court. Therefore, as this particular statute is meant entirely to be a criminal statute it fails to be such a statute at all. Mere passing of a statute by whatever majority cannot create a criminal offence for as long as the criminal offence has not been statutorily defined. Therefore, voting on a bill that is supposed to create a criminal offence, which has failed to do so is a futile exercise. Thus, proceeding with this Bill as it is now will not serve any legally valid purpose because the offence that it is trying to create is not defined by law
The danger of passing such a statute is that it could be made use for any purpose at all and there would be no predictability about the limits and the manner in which such a law can be misused.
It should be noted that misuse is possible as all persons are human and therefore are susceptible to committing errors inadvertently or even willfully. The persons engaged in the administration of justice despite all their good intentions and qualifications could still commit errors.
There are instances in which such things have happened relating to contempt of court which has already come under disapproval of the UN Human Rights Committee when examining two cases submitted by Sri Lankan citizens to this committee under the provisions of the optional protocol for ICCPR.
Sarath Silva and Tony Anthony case
These cases are the case of Tony Michael Anthony Fernando (1189/2003) and the case of S. B. Dissanayake (E-3585/04 EN). Particularly in the case of Tony Michael Anthony Fernando, the alleged offence was that he talked loudly in court. It would be quite strange if talking loudly in court becomes a part of a definition of the crime of contempt of court. As recorded by the UNHRC, what really happened was that Mr. Michael Anthony Fernando took an objection for the then Chief Justice presiding over a case in which Mr. Fernando was the complainant. Despite of the objection, the Chief Justice presided very the Bench and asked Mr. Fernando the basis on which he is making this objection, i.e. objection to hearing of the case by the Chief Justice.
Mr. Fernando read from the constitution article 12(1) and said that is the basis on which he is making the submission. The chief justice immediately asked him to stop speaking threatening that if he were to speak a word more he would have one month more to each of those words for the sentence that he has in mind which was one year of rigorous imprisonment. And Mr. Fernando was taken from the courts to the prison immediately and spent the full sentence.
It was this case that was disapproved by UNHRC in written view expressed under the special procedure recognised under the optional protocol to ICCPR. Similarly, S. B. Dissanayake was sentenced for two years of rigorous imprisonment for using some derogatory words against the court. In neither of these occasions, did the accused have the benefit of being charged under a well-defined offence with also the description of the possible consequences.
The question of definition also arises due to some other provisions of the proposed Bill such as section 8(1) b and c. These subsections allows a motion to be filed by the Attorney General or any other person about the commission of an offence under the act at the court.
There is no provision within the act explaining what is the process by which the Attorney General should get involved on matters relating to contempt of court. What is the process by which the AG receives information, processes information and also assesses the legal basis of such information as well as legal implications of these information. In the absence of a definition of an offence, all the considerations by the Attorney General would be purely of a subjective nature. The Attorney General thus becomes an officer having to exercise the power about an undefined matter. This in any case is impossibility of performance in a legally valid manner.
Therefore, the whole process of illegal definitions, and other matters which are arising out of the general law of the country and the new process of the law should all be taken into consideration in trying to define the role of the Attorney General in terms of prosecutions on contempt of court offence. In all other crimes the AG is not an initiator of the legal proceedings. There is a whole process which proceeds by way of investigations and gathering and assessment of evidence before the Attorney General comes into the picture and these are responsibilities of other departments and officers.
Legally absurd and vague
Besides being legally absurd and vague, these provisions of the act also leaves room for abuse. There had been cases when the work of the Attorney General’s department has been criticised by lawyers appearing in cases for example, when they point out that the information provided by the Attorney General’s Department/representative to the court is false or incorrect, AG’s department has moved that such criticisms amounts to contempt of court and therefore the lawyers should be prosecuted for contempt of court. In one instance, such an application was recorded by the court and was referred to the Chief Justice for his consideration on whether to take action against the lawyer. This shows the tendency to extend the contempt of court idea not only to courts but also departments such as the AG’s department.
Natasha Edirisooriya case
Also, the act states that any other person can also bring up a matter by way of a motion. This practice of any other person bringing in a petition has been a practice which has come to the notice of even courts as a possible abusive practice. In the famous case of Natasha Edirisooriya the case relating to the use of ICCPR act which came to be condemned in a highly appreciated judgment by a High Court judge who noted that mere petition by however a prominent person even a famous monk by itself should not lead to the beginning of legal proceedings, implying that without satisfying the requirements of law relating to criminal offence actions should not be taken. It applies even more to serious issues such as contempt of court which unscrupulous persons could abuse.
Thus, all these matters require clear legal articulation if the proposed law is not to create opportunities for all sorts of abuses rather than for the protection of proper and peaceful proceedings of cases in individual instances which is the core element of the contempt of court jurisdiction.
31 July 2023.
SRI LANKA: Does the proposed contempt of court Bill amount to 23rd amendment to the constitution?
By Basil Fernando
The draft Bill entitled ‘Contempt of Court, Tribunal or Institutions’, has been included in the parliament’s order paper and the issue of the constitutionality of this Bill will now be subjected to debate.
There are several key questions arising from this draft Bill. These are:-
Does this proposed law amounts to repeal or amendment of the constitution?
This question arises because of Article 105(3) of the constitution which has already provisions for dealing with the contempt of court. The relevant portion is as follows:
“The Supreme Court of the Republic of Sri Lanka and the Court of Appeal of the Republic of Sri Lanka shall each be a superior court of record and shall have all the powers of such court including the power to punish for contempt of itself, whether committed in the court itself or elsewhere, with imprisonment or fine or both as the court may deem fit. The power of the Court of Appeal shall include the power to punish for contempt of any other court, tribunal or institution referred to in paragraph (1)(c) of this Article, whether committed in the presence of such court or elsewhere”
The question that follows is as to the link between the proposed Bill and its provisions and the above mentioned articles of the constitution relating to contempt of court.
The draft bill makes no mention about any such link between the proposed law and the constitutional provisions relating to the same issue.
The implication that may be drawn is that this draft Bill is a repeal or an amendment to the constitution. It is a repeal because the new provisions of the act replaces the existing provisions of the constitution. The new draft law does not mention that it is an amendment to the constitutional provisions or any supplementary law in order to effect the existing constitutional provisions.
Instead, the new draft in section 15 states that “The provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other written law, and accordingly, in the event of any inconsistency between the provisions of this Act and such other law, the provisions of this Act shall prevail”. This in simple reading means that the provisions of this new draft Bill will prevail over article 105(3) and other relevant sections of the constitution.
The constitution is the supreme law of the country. No statute can override the provisions of the supreme law.
The new draft Bill is in fact a repeal and/or an amendment to the constitution. The manner in which repeal or the amendment to the constitution can be brought about is mentioned in articles 82 -84 of the constitution.
Article 82(1) states that a Bill for amendment of any provisions of the constitution should be placed on the order paper of the parliament unless the provision to be repealed, altered, or specified in the Bill is described in the long title thereof as being an Act for the amendment of the constitution. The draft Bill on Contempt of Court or Institution does not anywhere state such a long title as required by the constitution.
The constitution also states in Article 82(2) that the provisions for repealing the constitution should contain provisions replacing the constitution and is described in the long title thereof being an act for repeal and replacement of the constitution. The constitution also makes it a duty of the speaker not to place such a Bill which has not complied with the above mentioned provisions and not proceeded with unless it is amended as to comply with those requirements.
It will be useful for the public to know the full constitutional provisions regarding the amendment of the constitution because in several acts which has been proposed in recent months there has been an attempt to bring about repealing and amendment to constitutional provisions by introducing statutory provisions without following the constitutional process required for repealing and amendment of constitution. The result would be that the constitution itself will be merely treated as another statute which would be replaced by a new statute with the provision that the new statute will prevail over all previous laws.
For the benefit of the public we reproduce below the entire article 82 of the constitution.
82. (1) No Bill for the amendment of any provision of the Constitution shall be placed on the Order Paper of
Parliament, unless the provision to be repealed, altered or added, and consequential amendments, if any, are expressly specified in the Bill and is described in the long title thereof as being an Act for the amendment of the Constitution.
- No Bill for the repeal of the Constitution shall be placed on the Order Paper of Parliament unless the Bill contains provisions replacing the Constitution and is described in the long title thereof as being an Act for the repeal and replacement of the Constitution.
- If in the opinion of the Speaker, a Bill does not comply with the requirements of paragraph (1) or paragraph (2) of this Article, he shall direct that such Bill be not proceeded with unless it is amended so as to comply with those requirements.
- Notwithstanding anything in the preceding provisions of this Article, it shall be lawful for a Bill which complies with the requirements of paragraph (1) or paragraph (2) of this Article to be amended by Parliament provided that the Bill as so amended shall comply with those requirements.
- A Bill for the amendment of any provision of the Constitution or for the repeal and replacement of the Constitution, shall become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members (including those not present) and upon a certificate by the President or the Speaker, as the case may be, being endorsed thereon in accordance with the provisions of Article 80 or 79.
- No provision in any law shall, or shall be deemed to, amend, repeal or replace the Constitution or any provision thereof, or be so interpreted or construed, unless enacted in accordance with the requirements of the preceding provisions of this Article.
- In this Chapter, ‘œamendment’ includes repeal, alteration and addition.
27 July 2023.
(Above Articles are by the Asian Human Rights Commission)