In an attempt to fill Sri Lanka’s legal lacuna, the Bar Association of Sri Lanka has adopted a draft Contempt of Court Act to be submitted to the government this month, March 2005. The draft broadly incorporates principles embodied in the United Kingdom Contempt of Court Act (1981) and the Indian Contempt of Court Act (1971). It was drafted by a special committee set up by the Bar Association, comprising of lawyers. Although in 2003 a parliamentary committee received submission from a broad section of Sri Lankan society for the purpose of drafting such a law, the committee did not submit any draft to the parliament.
If the absence of a Contempt of Court Act was due to the lack of a draft law, the matter has now been resolved and Sri Lanka will have the necessary legislation within a short time. All that is required is for the cabinet to approve the draft law with the necessary amendments, present it as a bill to the parliament and have the Supreme Court examine it regarding constitutionality. At the end of this process the bill can be returned to the parliament, to be passed as law.
While the process of having the law passed is simple, the more complex question is whether the Sri Lankan government will consider it politically expedient to have such a law in the statute book. By removing uncertainties regarding contempt of court powers, the law will empower and enhance the freedom of expression of lawyers, litigants, the media and the public at large. Past instances of contempt of court proceedings have instilled considerable fear amidst the Sri Lankan people. The most well known of these occurred in the Supreme Court: one is the case of Tony Fernando, who was sentenced to one-year rigorous imprisonment for allegedly speaking loudly in court, and the other is the case of S B Dissanayake, a former senior minister who was sentenced to two-years imprisonment for remarks made at a public meeting. There have been similar cases in the lower courts as well.
Any delay in enacting this law can no longer be seen as due to technical reasons; it will be seen as political considerations that do not favour judicial independence assisted by lawyers and journalists free to act without fear or pressure. The removal of fear relating to the adjudication process is the duty of any government relying on a rational court system, which is necessary to the development of a dynamic economy and vibrant democracy. There is a common perception that the last several decades have seen a deterioration in both Sri Lanka’s court system and its democracy.
If the Sri Lankan government respects public opinion–which has been expressed quite strongly on this matter during the last few years–and accepts the importance of this draft, it will begin the process of turning the draft into legislation approved by parliament. The international community and UN agencies would also consider the enactment of this law a positive step towards enhancing judicial independence and human rights within the country.
The Bar Association of Sri Lanka and the committee that drafted the law should be congratulated for the service they have rendered in a matter of significant public interest. The Asian Human Rights Commission (AHRC) urges the Bar Association to circulate the draft law as widely as possible, in seeking the support of the government and all political parties for a quick enactment of this law. The media and public opinion makers should also involve themselves in this process, which will enhance their freedom of expression. It is hoped that the draft submitted by the Bar Association will become a law within the coming month or two.
