One of the least understood offences | Daily News
Contempt of court:

One of the least understood offences

As one of the least understood issues in the contemporary legal canon, it’s moot why there hasn’t been more public discussion on the issue of contempt of court. Public figures often tangle with court, and there are recent examples and older ones that involve those such as former Minister S. B. Dissanayake who was jailed for the offence.

Perhaps those who were at the wrong end of a court order on contempt are most of the time keenly aware that they are in contempt, but others may be ‘just in the way’ of persons for some other reason, as a senior state counsel of the Attorney General’s department found out not too long ago to her dismay.

The said counsel was discharged from contempt proceedings brought against her in the Court of Appeal for allegedly not acting upon an undertaking to court, in Kahapola Arrachige Prabath vs Urban Council Kesbewa and 12 others. (CA/Contempt/05/2018.)

Even those who are found in contempt and sentenced are probably not aware that direct interference with court such as willfully interfering with or disturbing court proceedings is considered a criminal offence, hence attracting criminal penalties. On the other hand, disobedience as in disregarding a court order is considered a civil offence.

But what is confusing to the layman in particular is the fact that even in cases of civil contempt, that contempt is considered to be an offence that is criminal in character.

This was held in a clear and detailed judgement by Justice Saleem Marsoof in the Supreme Court judgement in the contempt case Welaratne vs Moses. (Sri Lanka Law Reports 2007 1 SLR.)

Dispute

The appellant in this case had been engaged in some construction work in a disputed property, and this act was contrary to an undertaking that he had given in court that he will not engage in any such activity until there was a just settlement of the land dispute. He was held in contempt

However, he had taken up the position that the order made by court – the Court of Appeal, that is – upon which he gave his undertaking was irregular because it had been made without court giving due consideration to the arguments of both parties to the case.

This position however was not validated by the Supreme Court on appeal, which held that an undertaking in court has to be respected and that the court did not go into the merits of the case and call for submissions from both parties, precisely because such an undertaking was given by the appellant.

It’s a great object lesson to any and all litigants who think of trifling with court undertakings and such. Contempt is not confined to going against a court order and disobeying it. Any oath or undertaking in court has to be treated as solemn and binding and not to be trifled with, under pain of contempt as the appellant in the aforementioned case learnt the hard way, it seems.

Does that mean that there can be no bona fide criticism or observations about court?

In the case of A. Reginald Perera, the Privy Council held in Appeal: Their Lordships are satisfied that this Order (Justice Basnayake’s Order convicting Perera of Contempt of Court) ought not to have been made.

They have given the matter the anxious scrutiny that is due to any suggestion that something has been done which might impede the due administration of justice in Ceylon, and it is proper that the Courts there should be vigilant to correct any misapprehension in the public that would lead to the belief that accused persons or prisoners are denied the right that ought to be theirs. But Mr. Perera too has rights that must be respected, and Their Lordships are unable to find anything in his conduct that comes within the definition of contempt of Court.

(Judicial Committee of the Privy Council judgement as reported in the British Law Report –Appeal Cases-[1951] AC 482.)

The facts of the case are as follows. A. Reginald Perera was a Member of Parliament and had in his role as a MP visited the Remand Prison in Colombo in 1950.

Some prisoners complained to him that they are not taken to the court when their cases came up for hearing. Reginald Perera who was asked to write his observations in the pages of the prison visitors’ book, observed among other things that “it’s not a healthy practice that the inmates are not allowed to be present when their cases were taken up in court.”

Standards

It turned out that this information was not strictly true, that he had been misinformed, and that the prisoners were taken to court when proper hearings came up, but were not taken when routine court matters were being considered.

Someone brought the matter of Perera’s visitor book entry to the attention of the Supreme Court, and Chief Justice Hema Basnayake issued a rule on Reginald Perera, and after a brief hearing determined that he was in contempt, and ordered him to pay a massive fine that was astronomical by the standards of that time.

Perera appealed to the Privy Council in the UK — to which Appeal was of course available at the time Ceylon was a dominion — which made the above determination adding that Reginald Perera had not made public statements, and that he had merely made an observation on a visitor’s book, in his line of duty as a people’s representative in the Ceylonese legislature.

Though there have been positive outcomes of this sort with regard to cases of contempt, those who want to reform the contempt laws in the country say that the laws of contempt pose massive problems in Sri Lanka, because contempt is a sui generis offence – it’s a unique category of the breach of a law, in other words.The critics say that contempt law has to be codified for some level of uniformity to prevail in contempt judgements.

But that’s the critics. Others feel that contempt law as it prevails is just right. They point to some of the cases in the remembered past and say that there can be no effective functioning of court without judges having the power to impose punishment as they see fit for contempt.

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