(Hong Kong, August 09, 2023)
Written submission to the Supreme Court on the “Contempt of a Court, Tribunal or Institution” Bill
The Bill titled “Contempt of a Court, Tribunal or Institution” came for discussion before the Supreme Court on the 3rd and 4th of August. After the oral submission, written submissions were allowed to be filed by the 8th of August.
Several petitioners filed objections to the Bill and the Attorney General, appearing on behalf of the State, submitted the position of the Government.
We submit below the full text of the written submission filed by a team of four lawyers – Ms. Githmi Wijenarayana, Ms. Fadhila Fairoze, Ms. Harini Jayawardhana and Mr. Pulasthi Hewamanna – on behalf of Mr. W. J. Basil Fernando the petitioner. Similar submissions were also filed on behalf of Mr. E. V. Kingsley Karunaratne.
The 78 page submission by this team of lawyers covered many issues demonstrating the unconstitutionality of this Bill, as a whole as well as on many separate clauses. It was submitted that this Bill, in order to be passed as a law, needs to be brought within the constitutional requirements, particularly in terms of Article 82 of the Constitution, which prescribes the manner in which the repeal of, alteration to, or additions to, and consequential amendment of, the law, are to be brought about. The Bill, in its present form, has not complied with these requirements. The Constitution is the supreme law of the land and all other laws need to conform to the Constitution. Any amendment to the Constitution can be brought about only by way of complying with the constitutional requirements such as the passing of the Bill by over two thirds of the Members of the Parliament and by way of a referendum.
Besides non-compliance with Article 82 of the Constitution in terms of which, Article 105 of the Constitution will be repealed or replaced, there is also in the Bill, a series of issues which are in conflict with the provisions of the Constitution. These are enumerated in detail in the submission.
The Bill proposes to create 30 new offences. They are;
i. Committing an act or omission with the intent to bring the authority of a court, tribunal and institution and the administration of justice into disrespect [Clause 3(1)(a)];
ii. Committing an act or omission with the intent to bring the authority of a court, tribunal and institution and the administration of justice into disregard [Clause 3(1)(a)];
iii. Committing an act or omission with the intent to interfere with the judicial process in relation to any ongoing litigation [Clause 3(1)(b)];
iv. Committing an act or omission with the intent to cause prejudice to the judicial process in relation to any ongoing litigation [Clause 3(1)(b)];
v. Wilful disobedience to any judgment, decree, direction, order, writ or other process of a court, tribunal or institution [Clause 3(2)(a)];
vi. Wilful breach of an undertaking given to a court, tribunal or institution [Clause 3(2)(b)];
vii. Expressing, pronouncing or publishing any matter that is not substantially true which scandalises the judicial authority of a court, tribunal or institution [Clause 3(2)(c)];
viii. Scandalising a court, tribunal or institution, or a judge or judicial officer with the intent to interfere with the due administration of justice [Clause 3(2)(e)];
ix. Expressing, pronouncing or publishing any matter that is not substantially true which scandalises the dignity of a court, tribunal or institution [Clause 3(2)(c)];
x. Expressing, pronouncing or publishing any matter that is not substantially true which lowers the judicial authority of a court, tribunal or institution [Clause 3(2)(c)];
xi. Expressing, pronouncing or publishing any matter that is not substantially true which lowers the dignity of a court, tribunal or institution [Clause 3(2)(c)];
xii. Expressing, pronouncing or publishing any matter that is not substantially true which interferes with the due course of any judicial proceeding [Clause 3(2)(c)];
xiii. Expressing, pronouncing or publishing any matter that is not substantially true which prejudices the due course of any judicial proceeding [Clause 3(2)(c)];
xiv. Expressing, pronouncing or publishing any matter that is not substantially true which interferes with the administration of justice [Clause 3(2)(c)];
xv. Expressing, pronouncing or publishing any matter that is not substantially true which obstruct the administration of justice;
xvi. Scandalising a court, tribunal or institution, or a judge or judicial officer with the intent to excite dissatisfaction in the minds of the public in regard to a court, tribunal or institution [Clause 3(2)(e)];
xvii. Scandalising a court, tribunal or institution, or a judge or judicial officer with the intent to cast public suspicion on the administration of justice [Clause 3(2)(e)];
xviii. Doing any other act which scandalises the judicial authority of a court, tribunal or institution [Clause 3(2)(c)];
xix. Doing any other act which scandalises the dignity of a court, tribunal or institution [Clause 3(2)(c)];
xx. Doing any other act which lowers the judicial authority of a court, tribunal or institution [Clause 3(2)(c)];
xxi. Doing any other act which lowers the dignity of a court, tribunal or institution [Clause 3(2)(c)];
xxii. Doing any other act which prejudices the due course of any judicial proceeding [Clause 3(2)(c)];
xxiii. Doing any other act which interferes with the due course of any judicial proceeding [Clause 3(2)(c)];
xxiv. Doing any other act which interferes with the administration of justice [Clause 3(2)(c)];
xxv. Doing any other act which obstructs the administration of justice [Clause 3(2)(c)];
xxvi. Use of any electronic device or other instrument for audio or visual recording or both in a court, tribunal or institution without the leave of the court, tribunal or institution already obtained [Clause 3(2)(d)];
xxvii. Bringing into a court, tribunal or institution any such device or instrument for the purpose of audio or visual recording or both, without the leave of the court, tribunal or institution already obtained [Clause 3(2)(d)];
xxviii. Publication of an audio or a visual recording or both of a proceeding or part of a proceeding of a court, tribunal or institution made by means of any electronic device or other instrument, or any such recording, derived directly or indirectly from such device or instrument without the leave of the court, tribunal or institution already obtained [Clause 3(2)(d)];
xxix. Transmission of an audio or a visual recording or both of a proceeding or part of a proceeding of a court, tribunal or institution made by means of any electronic device or other instrument, or any such recording derived directly or indirectly from such device or instrument without the leave of the court, tribunal or institution already obtained [Clause 3(2)(d)];
xxx. Use of any electronic device or other instrument, or publication or transmission of an audio or a visual recording or both of a proceeding of a court, tribunal or institution, in contravention of any leave granted under sub-paragraph (i) or sub-paragraph (ii) [Clause 3(2)(d)].
The submission lengthily details the scandalising of the court which has been considered in many of the developed jurisdictions as an absolute offence that has been abolished or disregarded. Case authorities from many countries have been cited about the change of jurisprudence and attitude regarding this issue as inappropriate for the modern times.
The submission concludes that thus and otherwise, we respectfully submit that the regulation of seemingly unfettered constitutional powers that contain the potential for arbitrariness, while welcome, must be done in the proper manner and form prescribed by the Constitution. We therefore submit that the regulation of the law relating to contempt of court must be by way of an amendment to Article 105(3) of the Constitution. We respectfully urge your Ladyship and Lordships to declare and determine that;
a) The Bill as placed on the Order Paper of the Parliament fails to comply with the requirements in Article 82 of the Constitution;
b) Clauses 2(d), 2(e) and 2(f), and 3(2)(c), are violative of Articles 3, 4, 12(1), and 14(1)(a) of the Constitution;
c) Clause 3(2)(e) is inconsistent with Articles 3, 4, 12(1) and 14(1)(a) read with Articles 1, 3 and the Preamble of the Constitution;
d) Clause 4 is inconsistent with Articles 3, 4, 12(1) and 14(1)(a) of the Constitution;
e) Clause 7 is inconsistent with Articles 3, 4, 12(1), 13(1), 13(2), 13(3) and 13(5) of the Constitution;
f) Clauses 8 and 9 are inconsistent with Articles 3, 4, 12(1), 13(3) and 13(5) of the Constitution;
g) Clause 11 is inconsistent with Articles 3, 4, 105 and 12(1) of the Constitution;
h) Clauses 12 and 16 are inconsistent with Articles 3, 4 and 12(1) of the Constitution.
Thus and otherwise, even in the event your Ladyship’s Court is of the opinion that this Bill titled “Contempt of a Court, Tribunal or Institution Bill” is in the proper manner and form contemplated by the Constitution, we respectfully submit that as the core clauses of the Bill offend the Fundamental Rights and the sovereignty of the people, this Bill and/or the aforementioned specific provisions of the Bill, require compliance with Article 83 as read with Article 80 of the Constitution for enactment into law, and cannot be enacted into law except unless approved by the people at a referendum in addition to a two-thirds vote of the whole number of the Members of the Parliament in favour.
Read the full submission here.
