The appointment of a select committee of [the Sri Lankan] Parliament to inquire into and report on the Law Relating to Contempt of Court and to make recommendations regarding the codification of the existing law is a welcome move that addresses an urgent need.
The envisaged law must ensure that the law of contempt be one suitable for a democracy. Ideas of contempt in a democracy are very different to those of a feudal society. In a feudal society, as in medieval Sri Lanka, those in authority required people to kneel down before them, not even to look at them, and at all times to talk in a low voice. Such descriptions and pictures as found in Robert Knox’s book An historical relation of Ceylon demonstrate the type of respect demanded by the authorities and elite of that society. The citizens had to humiliate themselves before those considered important. Such marks of respect were a means by which relations between those deemed to be superior and inferior were enforced and reinforced. Thus, the codes of conduct required in feudal times were methods of intimidation used as a means of social control.
The fundamental principle of a democracy is equality. No one owes any special respect to anyone else. Respect is owed to each other as human beings collectively seeking the betterment of each other. In the courtroom, judges and litigants are equals as citizens and need to mutually respect each other. The application of the equality principle in this respect is of paramount importance to a litigant coming before the court to plead a case as a person with dignity.
The right to be heard fully and clearly is at the heart of the relationship between judges and litigants. All that can be expected from each party is that the decencies of social discourse be commonly applied to everyone. The rights of lawyers are also bound up with the rights of litigants. That each litigating party can express themselves without being afraid of hurting the sensitivities of a judge is essential to decent discourse. The litigants, including their lawyers, must be able to expect a high sense of culture and tolerance from their judges. A dynamic process of legal presentation and vigorous argumentation must be possible.
The mere fact that one or more judges in a particular case may arrive at a different conclusion to that urged by a particular litigant should not be reason enough for a litigant to cease arguing their case with a view to convincing the court of their position. Like other human beings, judges also change their minds in the course of listening to arguments.
The purpose of a contempt of court law is to safeguard the dignity of the court so that it can conduct its affairs and carry out its duties in a proper manner. Thus, such a law applies to many different situations, for example, court hearings, court orders, court attendance, etc. The issue in all circumstances is whether there is a deliberate attempt to obstruct the functioning of the court and to prevent it from carrying out its responsibilities. At the core of the doctrine of contempt is the importance of the administration of justice. If the administration of justice is obstructed in some manner, it affects the whole society, and the democratic foundations of society can be adversely impacted by such obstruction. The ultimate justification for punishment because of contempt of court is the doctrine of separation of powers.
In fact, the normal citizens do not constitute the main threat to the courts in this respect, but rather those holding authority who do not comply with court orders, do not come to court despite being summoned, and whose actions or inaction delay or undo the work of the courts. In fact, the failure of the police authorities to comply with court orders to conduct disciplinary inquires against some officers and initiate prosecutions after the courts have made orders to this effect must be seriously considered. A further issue is whether any harm done to a person in prison, over whom the court has handed custody is, or is not, an act of contempt of court. Another interesting issue is whether any court officer who solicits or accepts payments except those that are legally due for official acts, such as issuing certified copies of documents, is not, in fact, acting in contempt of court. This list of offences should also include the acts of politicians who attempt to obstruct justice. Moreover, even political acts in which the collective position of judges is diminished or their powers removed so that they cannot fully carry out their functions to safeguard the rights of citizens in a democratic society need examination. The humiliation of judges by those in power, including the degrading removal of judges by amending the Constitution, is a matter of concern to those who care for the importance of the central role that judges play in a society. Thus, there is a vast area of official behaviour that should be considered when dealing with contempt of court.
When it comes to the cases of individual litigants, the test of contempt must be whether such conduct would be considered contemptuous behaviour under normal circumstances within a particular society. Terms such as “disturbing the court” or “scandalising the court” must be interpreted with a high degree of rationality, culture and humour. Tolerance of merely irritating behaviour by one or another party can be dealt with subtly, rather than by the use of a contempt law. All human relationships bring about situations that might not be acceptable to everyone. There are differences in education, culture and personality among people. There are also variations in expressions. This is particularly important in instances when a person is confused, or when they are out of their depth. Furthermore, if the person is deeply disturbed, shocked or frustrated, they may express themselves in an unusual way. Unusual behaviour, however, is not in itself contemptuous behaviour. The complex nature of human beings requires understanding, sympathy and compassionate treatment if decent human discourse is to be maintained.
Even after a decision is reached on the guilt of a person following an objective assessment, the consideration of mitigating circumstances is essential in dispensing justice. In exercising powers of punishment, civilisation requires that the principle of proportionality be thoroughly honoured. Without adhering to this principle, justice can degenerate into revenge, and can have more cynical consequences than acting as a deterrence. In Sri Lanka’s recent history, many young people who may have done no more than read a pamphlet were extrajudicially executed. Overcoming this feudal tradition of disproportionate punishments remains a major task that the justice system in the country must confront. As a group of people legally vested with the power to deprive a person of liberty, judges need to set an example of great restraint. If abuse of authority comes from the executive branch or anywhere else, people can turn to the judiciary to correct it. However, if the abuse emanates from the hands of a judge, people have nowhere else to turn. Consequently, judges must exercise such awesome power with the highest degree of civility possible.
In closing, the following elements should be incorporated into the law:
- Any person accused of contempt of court must be provided with all due process rights granted to any other person accused of a crime.
- Article 14 of the International Covenant on Civil and Political Rights, and other relevant provisions of the law must be respected.
- A particular bench of a court that accuses a person of acting in contempt should not hear the contempt case and pronounce a verdict.
- A court that accuses a person of acting in contempt must set out in writing the details of the acts or utterances that it deems constitute contempt, with the court presenting the facts and not just its impressions.
- An intention to cause contempt must be treated as an element of the crime.
- The accused must be given a charge sheet, like any person accused of a crime, in compliance with the legal requirements stipulated in the law.
- The accused must be given sufficient time, as in other criminal case, to prepare and present his case.
- The accused must be entitled to legal advice and legal representation.
- The accused, if pleading guilty or found guilty, must be heard before sentencing in order to offer grounds for mitigation of the sentence.
