By Basil Fernando
This article is a follow up to: 1. Does the proposed contempt of court Bill amount to 23rd amendment to the constitution? 2. Is contempt of court unlike any other crime?
To anyone who may be surprised by this question, we wish to remind that not too long ago, the issue became quite big enough to get a man one year’s rigourous imprisonment even without any kind of a due process on the alleged ground that he talked loudly in court. The issue became so big that it went before the United Nations Human Rights Committee (UNHRC) under the Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR) to which Sri Lanka is a signatory to.
The gist of the UNHRC officials’ view expressed by a team of experts and judges from various countries, was that the man had been severely wronged and that his human rights guaranteed by the ICCPR and the Sri Lankan Constitution had been violated. The whole narrative of this case is well recorded in the Human Rights Committee’s official view expressed and given to the Sri Lankan Government and also publicised internationally. This judgment is also part of the international laws on several issues, including that of contempt of court.
In a YouTube presentation published recently, Mr. Michael Anthony Emmanuel Fernando, the man who had to suffer this ordeal, described what happened in court. He filed a petition on a simple issue which was dismissed and he filed it for the second time and with the request that the Chief Justice of the time should not hear the case. However, the Chief Justice presided over a panel of three Judges and heard the case himself. The question that the Chief Justice asked Mr. Fernando was the grounds for making the application. Mr. Fernando who was appearing on his own and did not have a lawyer replied that he was referring to Article 12(1) of the Constitution of Sri Lanka which guarantees equality before the law. Mr. Fernando narrates that as he was finishing reading this particular section from the Constitution, the Chief Justice ordered from the Bench that he will add one month more to every word that Mr. Fernando would say any further, adding to the one year of rigourous imprisonment that was imposed there and then immediately against Mr. Fernando. He was sent from the Court directly to jail and spent the total period of the sentence. It was a few days later that the judgment was written which merely said that he was sentenced for contempt of court for speaking loudly in Court. For the UNHRC case, kindly see Communication Number 1189/2003 and for Mr. Tony Fernando published in YouTube, kindly click here.
Thus, this question of how loudly you can talk in court is not some kind of a triviality or some sort of fictional question but had been something for which a Sri Lankan citizen had to pay by one year of rigourous imprisonment. Now that the new Bill relating to Contempt of Court is being discussed, the issue of how to determine what in fact contempt of court consists of has become a matter of concern not only for litigants but also a matter of anxiety for a number of lawyers. More anxious are the lawyers who take serious legal objections to various matters during court proceedings and who engage in the use of their full freedom as lawyers in the cross examination of witnesses and of making submissions particularly on controversial matters. There is anxiety expressed whether the tone of their voice or a gesture that they might make or a serious question they may raise to the jurisdiction or other matters that may arise in court may lead to allegations of contempt of court. Given Tony Fernando’s experience, their concerns cannot be regarded as exaggeration. If, as it was expected, it is the common law principles relating to contempt of court that applied, this ambiguity would not have arisen. The contempt of court in the United Kingdom and similar law in other Commonwealth countries have clearly expressed the limited scope of this offence. It is indeed a very limited area that a contempt of court law covers. The contempt of court issue looks into several fundamental matters essential to the functioning of impartial and independent judicial proceedings. The first is that there should be not only actual independence exercised by the court but it should also appear to be independent. The word independent comes from the philosophical roots. It comes from the ideas of critical enquiry. The whole judicial process differs from anything that may go in the name of legislative activity or Executive activity in that the court processes must strictly operate within the highest traditions of the critical exercise of reason. Reason is a difficult matter. If reason was very easy in fact, a judicial system of the nature that many countries have will not be needed.
It has been the great debate throughout history, particularly since the writing of Immanuel Kant on the critique of pure reason that the whole process of critical examination is developed into a highly sophisticated philosophical discipline. Modern courts are from the period of enlightenment and as a product of enlightenment, they have to manifest the highest form of loyalty to respect reason.
With the development of empiricism, the court system was also exposed to the philosophical developments that took place in Europe in terms of Jeremy Bentham and his theories on utilitarianism and the cultural foundations of enquiries into truth were more and more formulated on the basis of these philosophical considerations. The essence of what was later known as the scientific methods was that you arrived at the approximation of truth only by doubting the material before you. A scientist engaged in any kind of enquiry, is essentially fighting a case against himself, trying to disprove with reason what he/she might believe or know so far. When all the arguments are exhausted and still there is a certain matter that cannot be challenged on available evidence, then, that is taken as proof.
The exercise of courts cannot be separated from the art of proof and the art of proof cannot take place without the rigourous possibility of argumentation and that is possible in an environment in which encouragement is given in every possible way for those engaged in the contested issues to give justifications to their positions and claims. A judge exercising critical faculty and impartiality in such a situation will make a decision purely on the basis of reason applied in terms of evidence.
These are what the courts are meant to be. Therefore, any law that may operate as contempt of court should not be an obstacle to free enquiry, and independent spirit to challenge whatever positions taken by anyone with a view to help arrive at the conclusions. Preserving that process is to preserve courts. To destroy that process is to destroy the very nature of the court system.
Therefore, the very clear articulation of the limits of the contempt of court law as it has been defined in other commonwealth countries has to be seriously asserted into this debate into what contempt of court law should be in Sri Lanka.
In the common law, the application of contempt of court is limited to particular individual cases. It means that when the court proceedings are going on, no one should disturb the proceedings from taking place so that the courts can attend to their own business without being disturbed. Contempt of court means to prevent any influence made on a particular case by anyway including that of publications that have the intention to influence the outcome of a case. So long as attempts are not made to bring pressure or in any other way to influence the outcome of the case, all other matters are completely outside the scope of the contempt of court law in a common law country. However, the proposed Bill goes at a tangent into bringing all kinds of other ideas into the scope of contempt of court not so much with the direct purpose of ensuring peaceful proceedings taking place but in order to prevent discussions on the nature of the administration of justice in the country and other matters dealing with the rule of law and the functioning of legal systems into this contempt of court arena.
The global debate on contempt of court has clearly indicated that it is a sign of enlightenment of a country to keep a lively discussion on all aspects of the administration of justice including judicial reforms, judicial conduct and the like.
The Bill tried to use as an alternative to contempt of court, the respect of the court. These are two completely different concepts. Respect to the legal framework, the ability of the courts to function is one matter. However, pointing to the defects of the system, the irregularities that could occur and various defects that may develop, these all need discussions. And, it is the characteristic of an enlightened society to encourage this as it is a sign of efficiency. Thus, the purpose of contempt of court is not to create more confusion and add to inefficacy and complicate the problems of an already damaged legal system. That our legal system is seriously damaged is not disputed. It has been talked in the Parliament and every other place outside the Parliament, and is also discussed internationally and also in negotiations with the International Monetary Fund and other financial agencies. Restoring the rule of law is the major challenge in the country.
The contempt of court law should be of a very limited application to prevent disturbances to legal proceedings.
The word respect in a feudal society is very different to the idea of how it is understood in a developed modern society. In the rule of law society, respect must be shown in every possible way. The people should bow down before authority, behave like half slaves before their masters or those considered superiors. Some kind of inferiority must be demonstrated before others who are made to appear as super beings. No one in a democracy is a super person. The fundamental principle of the constitution is equality before law. All citizens are equal. Therefore, that kind of respect is not what is expected towards the court. The respect for reason and the highest form of reasonable behaviour is the way to pay the greatest respect to the courts.
