The sovereignty of the people is best expressed by the exercise of freedom of expression and freedom of assembly. Both of these freedoms are essential to common people living with a sense of dignity. These freedoms are also essential in order to create a sense of community among all the peoples who live within the territory of a particular state. The deepest material, intellectual, physiological, and spiritual bonds are created only through the people talking and thinking about each other.
The state of nature that Thomas Hobbes spoke about where every man lives for himself or herself could be modified, and each other’s welfare could be enhanced only through the capacity for freedom of expression and freedom of assembly. Therefore, all branches of the state should make it their duty to do everything possible to allow space for the exercise of these two freedoms.
If any of the branches obstructs these freedoms, it does so at the peril of the whole state, which in turn means the peril of the people living within such a state.
Whatever powers each branch exercises, including the power of the contempt of court, should be the purpose of enhancing the internal unity and sense of responsibility and care of all the people. If any power is used without consideration for this overall goal, many societal problems will arise and such problems could lead to violence and even civil wars. Therefore, genuine security demands the highest possible expression of these two freedoms.
The direct results of the exercise of freedom of expression and assembly are the improvement of the creative powers of the people. Dynamism of the society depends on the exercise of such power. If the economy is in deep crisis, if there are internal conflicts among the people living in society, if demoralization rather than hope prevails, these all mean that there had are loopholes in the exercise of creative powers by the people.
It is only when there are societal failures, that there also begin to manifest the failures of the state. When these two failures combine, it becomes impossible for any government to rule and to achieve the desired goals to contribute to the betterment of the society as a whole.
All branches of government, including the judiciary, should contribute to the unleashing of the creative power of the people. If any of the branches act contrary to this purpose, the result would be ruining of the very fabric of the society.
What all this means, is that contempt of court should have a limited scope, and that scope should be used with extreme caution and prudence. A critique of the judiciary as an institution, and the exposure of its defects is the only way through which the institution can be improved. If the institution does not improve, it negatively affects societal development.
Therefore, the use of contempt of court powers is not meant to intimidate critics or directly or indirectly suppress the creative power of the people. The contempt of court power is only a limited power to enable the courts to function in a manner required by the law, to ensure the orderly conduct of the court proceedings.
As for various different views on the courts, it should be assumed that the people are capable of choosing the better opinion from a variety of opinion that they may listen to. Inherent to the sovereignty of the people is the assumption that the people are able to exercise the sovereignty if no intimidation and fear is imposed on them. The power of reason residing among human beings is a foundation on which the sovereignty of the people could rest.
No branch of government should interfere on choosing what opinion is better and what is not. This is a function that the people could exercise by themselves. No branch of government should interfere in order to impose its point of view on the people.
The feudal conception of authority derives from the feudal King and corresponding laws taking it upon themselves the task of imposing opinions and beliefs upon the people. Furthermore, they impose severe punishments on contrary opinions expressed by people. The modern state is not built on this feudal consideration. That human beings are born free is the foundation on which democratic society rests. The feudal society believes that human beings are not born free, and that whatever freedom they get, they get from their monarch. John Locke refuted this position in his two treatises on government. The foundation of the sovereignty of the people rests, according to him, on the basis of the inherent rights of people, which are inalienable. This is also the foundation of the declaration of independence and the constitution of the United States, as well as in all countries that accept a democratic way of government. To reject this position of inherent freedom provides a premise for tyranny.
All branches of government should demonstratively manifest that their power rests on the inherent freedom of the people living within a particular state. None of the powers should be used to intimidate or to impose fear on the free exercise of people’s freedoms within a framework of the law. The exercise of the contempt of court jurisdiction is no exception to this rule.
The sovereignty of the people and the role of the institutions of justice
It was Jean Jacques Rousseau who articulated the concept of the sovereignty of the people as a foundation on which the state is built. Previously, the notion of divine rights of the King to rule was the prevalent universal doctrine. This was challenged by John Locke in his two treatises on government. He argued against the divine rights of Kings. Jean Jacques Rousseau expanded this debate further by asserting the sovereignty of the people as the foundation of government. The Sri Lankan Constitution is also based on the principle of sovereignty of the people.
The sovereign’s every attempt to undermine the rule of law is a venture attacking the very notion of the sovereignty of the people. A slave does not have the benefits of the laws that apply to free people. On the other hand, when a Ruler stands above the others by not being bound by the same laws, that too makes the notion of sovereignty of the people meaningless.
What gives legitimacy to the justice administration system is the existence of uniform laws. The distinction between democracy and tyranny lies along with this existence of uniform laws; wherever the ruler is above the law, the essential condition for tyranny exists therein.
It is the sovereignty of the people that creates the state and gives powers to all the branches of the state to rule within the framework of the law. Therefore, the sovereignty of the people is the superior principle from which the state itself derives its authority.
This also applies to the judiciary, which is also a branch of the state. The judiciary acts on the basis of a power derived from the sovereignty of the people. Therefore, the courts are bound to act strictly within the framework of uniform laws created by the sovereignty of the people through their system of representatives or by other means, like for an example in the event of revolutions.
A citizen coming before any court shares in the sovereignty of the people. Therefore, the court should recognize in him a share of the sovereignty from which the court itself has derived its authority.
It thus follows that in the exercise of such authority, courts, like any other institutions, have no power to act contrary to the principle of sovereignty of people. This also applies to litigants who are accused of contempt of court. The idea of the contempt of court within the modern state is not based on the divine rights of Kings to rule. During the time when that notion of divine right of Kings prevailed, courts derived their power from the King.
Under the doctrine of divine rights of Kings, the King had the power to act arbitrarily without any respect for any of the laws that prevailed in the particular country. Deriving power from the Kings, the courts in a society could also act arbitrarily. In the case of contempt of court, the courts could arbitrarily exercise jurisdiction; the courts could subjectively define what constitutes contempt and how the offence is to be punished.
However, that is not the case where the sovereignty of the people is the foundation on which the structure of the state is built and maintained through a uniform system of laws. What is contempt of court, what is the manner in which such a charge should be brought about, what is the manner in which such a charge should be inquired into and what is the punishment for such a charge, should all be decided on the basis of law and not by any arbitrary power that the court may give to itself.
The notion of the sovereignty of the people imposes a certain discipline on the part of all those who act on behalf of the state including those who are engaged in tasks related to the administration of justice. This also includes the judiciary. This general principle relating to discipline also applies to deal with the cases of contempt of court. The strict discipline of the law should be maintained and should be seen to be maintained in dealing in all cases. A uniform system of discipline excludes any arbitrary action. Anyone who acts contrary to the discipline required by the prevalent laws derived from the sovereignty of the people is engaged in wrongdoing. That endangers the very fabric of society based on the sovereignty of the people.
The Executive or other powerful social forces may want to use contempt of court as a weapon to punish and silence opponents. When the Executive or others do this, they act arbitrarily and not on the basis of law. The courts have a fundamental obligation to resist such arbitrary actions. Such attempts to misuse the contempt of court jurisdiction directly collide with the principle of the sovereignty of the people.
The United Nations Human Rights Committee has held twice that the actions taken on the charges of contempt of court by the Sri Lankan Supreme Court violate the human rights of the petitioners, requiring the state to take corrective action, including the payment of compensation for the wrongs suffered by the petitioners. These two cases are the communication by Anthony Emmanuel Fernando (Fernando_v_Sri Lanka, Comm. 1189/2003, U.N. Doc. A/60/40, Vol. II, at 226 (HRC 2005) and the case of S. B. Disanayake (Dissanayake v. Sri Lanka, Comm. 1373/2005, U.N. Doc. A/63/40, Vol. II, at 109 (HRC 2008), a politician and a member of parliament at the time.
The prevention of arbitrary action also applies to sentencing, if the court finds that the contempt of court charge has been proved. In the views expressed by the UN Human Rights Committee in the above mentioned two cases, the Committee mentioned that the sentences imposed by the Supreme Court were arbitrary and that they violate the human rights of the petitioners.