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BY Sanjaya Wilson Jayasekera.
As part of a larger onslaught on democratic rights, the Government of Sri Lanka (GoSL) of President Ranil Wickremesinghe, is waging a war against the free expression of the masses, specifically targeting print and digital media and online platforms. The latest of this attack is prepared by another piece of proposed legislation to reinvigorate the archaic legal mechanism of the contempt of court law, long used by Governments around the world to witch-hunt political opponents and stifle dissent and criticism.
The proposed law titled, “Contempt of Court, Tribunal and Institution Bill” was published in the Government gazette on 27 June, 2023, on the order of the Minister of Justice, Prison Affairs and Constitutional Reforms, President’s Counsel Dr. Wijeyadasa Rajapakshe.
On the same date last year (2022), the Cabinet of Ministers of then Prime Minister Wickremesinghe approved the proposal to codify the law to specify the offences, the punishments for the same and to provide for the procedure in punishing for contempt. The Bill proposes its objectives to be to: uphold the “dignity” and the authority of a court, tribunal and institution; protect the due administration of justice; safeguard public order, public health and morals; strike a balance between the right of expression, “fair comment” and compliance with judicial directives; and set out with precision the ambit of contempt of court.
It provides that a person who commits an act or omission with the intent to (a) bring the authority of a court, tribunal and institution and the administration of justice into disrespect or disregard, or (b) interfere with, or cause prejudice to the judicial process in relation to any ongoing litigation, commits the offence of contempt of court. Further, as per Section 3(c) of the Bill, expressing, pronouncing or publishing any matter that is “not substantially true” which, or doing any other act which, (i) “scandalises” or lowers the judicial authority or dignity of a court, tribunal or institution; (ii) prejudices, or interferes with, the due course of any judicial proceeding, or (iii) interferes with, or obstructs the administration of justice, commits contempt.
According to Section 3(e) thereof, “scandalising a court, tribunal or institution, or a judge or judicial officer with intent to
(i) interfere with the due administration of justice,
(ii) excite dissatisfaction in the minds of the public in regard to a court, tribunal or institution, or
(iii) cast public suspicion on the administration of justice,
is an offence. However, it is given that any publication or expression (a) of “true and accurate facts” of any case or proceedings before a court, tribunal or institution made without malice or intention to impair the administration of justice, or (b) of “fair comments” on merits of any action or application which has been heard and decided, shall not be deemed to be contempt.
None of the words and phrases, ‘dignity’, ‘fair comment’, ‘disrespect’, ‘causing prejudice to the judicial process’, and ‘scandalising’ have been defined in the Bill and therefore, would imply a broader scope covering any kind of speech or activity.
Discretion of a judge
The contempt proceedings could also be brought against a person in order to safeguard public order, health and morals, and against the publication of something “not substantially true”. How to ‘strike a balance’ between ‘fair comment’ and ‘compliance’ once again would depend on the discretion of a judge.
These terms would be easily interpreted against any dissent. Again, the judges themselves will find any free expression of opinion to amount to acts of contempt of court to excite dissatisfaction in the minds of the public in regard to a court, or to cast public suspicion on the administration of justice.
The Bill encodes the associated reactionary law of sub judice, which is often used to ban or restrict any expression or discussion on an ongoing case, which could happen to be of larger public interest. After all, fundamentally, judges themselves deciding on the contempt of itself constitutes a clear conflict of interest situation, and violates the rule that no one should hear his/her own case.
Sri Lanka’s authoritarian Constitution itself recognises that fundamental rights, specifically the right to the freedom of expression, could be restricted on the basis of contempt of court. It empowers the highest courts of the country, the Supreme Court (SC) and the Court of Appeal (CoA) to punish as it wishes for contempt that has taken place before or outside them or a lower court.
Under the Penal Code of Sri Lanka, the colonial legislation that codifies principal criminal offences, “whoever by words, either spoken or intended to be read, excites or attempts to excite hatred or contempt of the administration of justice” commits the offences of contempt.
Prosecutions for the aforesaid offences under the new law could be readily instituted against anybody by anyone, who could be the Police, a Government official or possibly any racist and religious group or individual who constitutes far right political forces hell bent on crushing fighters against backward and reactionary social structures.
The SC or the CoA can order the detention of the person charged for contempt under the Act against themselves or a lower court, or grant bail. It is a well known fact that defending a respondent in the apex Courts of the Island is not affordable to many and this could mean the deprivation of a strong defence and longer terms in detention.
A person found guilty of contempt of court could be imposed a fine up to Sri Lankan Rupees 0.5 million or to imprisonment for a period not exceeding one year, or both. On a second or subsequent conviction, these thresholds would be doubled.
While the GoSL wants to strengthen this draconian law, entrenching these constitutional restrictions, the common law jurisprudence, however limited, has affirmed that the freedom of expression should not be restricted by matters of contempt, as it cuts across the standards of modern democracy, and as judicial authority is not undermined by public criticism.
In the United Kingdom (UK), there is almost no conviction to be found for scandalising since the Rex vs. Thomas Colsey, Ex parte Director of Public Prosecutions, The Times case in 1931. Lord William John Kenneth Diplock, in 1985, in the House of Lords case of Secretary of State for Defence and Another vs. Guardian Newspapers Limited, considered the offence to be ‘virtually obsolescent’.
In the United States, the UK and Canada, the offence of criticising judges and courts has been effectively a dead letter.
During the past two decades, Sri Lanka has developed a practice of increasingly using this law to prosecute and incarcerate political opponents. In mid 2018, the SC convicted whistleblower, actor and then Parliamentarian from the United National Party (UNP), Ranjan Ramanayake to rigourous imprisonment for an unprecedented term of four years, for contempt, in openly asserting a public perception that the “Majority in Sri Lanka are corrupted judges, corrupted lawyers. They work for money.” The judgment of the Court easily avoided referring to rich jurisprudence that discourages the use of the contempt law to suppress criticism of the Judiciary.
In India, where contempt law is enacted, it has often been used to suppress dissent. The controversy surrounding its application to suppress expression came to limelight when, in 2020, the SC found activist and advocate Prashant Bhushan guilty of contempt for Tweeting to mean that the Indian SC and its past four Chief Justices were contributing to the destruction of the country’s democracy.
A demand of the ruling class
Dr. Rajapakshe’s proposed legislation is intended to make this anti-democratic law a part of the country’s statute book and give an otherwise discouraged and discredited law a new lease of life, making it easily accessible to reactionary forces in the assistance of the ruling class to suppress political opposition from the media, activists, the youth and the working people.
These reforms are the demand of the ruling class, not of the people. It is true to say that to enact is to always restrict some right. Whatever the ruling class may give from one hand, is taken from the other. The laws are shown to be placed to defend the good ones against bad ones, but, in fact, these are rules guarding one class against the other. However, liberal circles, think tanks and a section of the upper middle class of Colombo have for quite some time been lobbying for the codification of a contempt of court law. The Law Commission of Sri Lanka even proposed a draft Bill in 2008. The observable silence of these groups in respect of the current Bill shows their tacit approval of the law. Shown as the ultimate guardian of ‘justice’, the courts ‘independence’ is regarded by them in high esteem, and they want it to be immune from public criticism.
Recently, a number of similar anti-democratic law reforms were temporarily retracted or receded to the backdrop amidst larger public opposition. One such was the law proposed to institute a broadcasting regulatory commission to regulate media licensing and to introduce a number of media related offences to intimidate and punish journalists and media institutions. Earlier, a harsher law was proposed to replace the draconian Prevention of Terrorism (Temporary Provisions) Act, which has been widely used against ethnic minorities.
During and following last year’s mass protests, a number of times, the Government used court orders to block mass protests, attack protesters with baton charges, water cannons and tear gas, and arrest and prosecute them. The public perception of the justice system including the courts is nothing but of its own making. The more the class antagonisms deepen, the more precarious the crisis grows, and “all that is solid melts into air” and “all that is holy is profaned”.
The court is an instrument of class rule. In respect of matters relating to people at large, no court is independent from its bias towards the ruling class. Its unquestioned authority is therefore a critical element in securing the exploitative profit system, the capitalist property based relations. Expressions that can spark and direct class struggles against social inequality, when directed against the authority of this class instrument, should therefore be suppressed. Principles of sub judice and contempt of court originate from this class necessity.
History testifies that Governments, anywhere in the world, want people to believe a facade that their actions are democratically legitimate. Every dictatorship, even with all its machinery to arrest, detain, imprison and kill political opponents and working class leaders, still endeavours to make all repressive measures legal, having necessary laws passed by its legislatures, to attempt to preempt class struggles. However, the more the crisis deepens, whether they have these laws in their arsenal or not, they stop at nothing to halt the working class marching toward their barracks.
The Wickremesinghe Government is well aware that it is sitting on a social powder keg. It is aware that aborting the people’s right to elections, blaming the economic crisis, carries far reaching consequences in the public perception of the Government, in spite of all its subsequent false claims of economic recovery. Wickremesinghe is planning to hold a Presidential Election prior to another social uprising that could dwarf last year’s popular struggles, in view of the severe austerity measures implemented at the behest of the International Monetary Fund (IMF), which demands a strong authoritative regime to pay debts and impose its burden upon the working class.
Such mass struggles are not only a matter of time, but most critically, a matter of leadership. An independent revolutionary leadership of the working class has to be built. In view of the fact that all bourgeois nationalist alternatives are rotten to the core, including the so called petit bourgeois political movements, the space for fascistic elements to gather a momentum within disillusioned sections of the middle class is an acute danger. Unless the working class takes command of the deep rooted social anger to direct progressive social forces against the ruling class, social counter revolution will take rather bloodier forms. This prospect should be defeated.
The essential first step in this perspective is for the working class to take matters of their lives into their own hands. Laws for the toiling masses have to be determined democratically by them through their own independent committees. They should convene a constituent assembly of the working class to abolish all repressive and communal laws, and to draw up a new constitution for themselves. Such a constitution should be based on principles of social equality, in order to reorganise the society for the benefit of the oppressed, not for the profit of a tiny layer of a parasitic class.
(The writer is an attorney and a Lecturer at the Sri Lanka Law College.)