By Basil Fernando –
The draft Bill entitled ‘Contempt of Court, Tribunal or Institutions’, has been included in the parliament’s order paper and the issue of the constitutionality of this Bill will now be subjected to debate. There are several key questions arising from this draft Bill. These are:-
Does this proposed law amounts to repeal or amendment of the constitution?
This question arises because of Article 105(3) of the constitution which has already provisions for dealing with the contempt of court. The relevant portion is as follows:
“The Supreme Court of the Republic of Sri Lanka and the Court of Appeal of the Republic of Sri Lanka shall each be a superior court of record and shall have all the powers of such court including the power to punish for contempt of itself, whether committed in the court itself or elsewhere, with imprisonment or fine or both as the court may deem fit. The power of the Court of Appeal shall include the power to punish for contempt of any other court, tribunal or institution referred to in paragraph (1)(c) of this Article, whether committed in the presence of such court or elsewhere”
The question that follows is as to the link between the proposed Bill and its provisions and the above mentioned articles of the constitution relating to contempt of court.
The draft bill makes no mention about any such link between the proposed law and the constitutional provisions relating to the same issue.
The implication that may be drawn is that this draft Bill is a repeal or an amendment to the constitution. It is a repeal because the new provisions of the act replaces the existing provisions of the constitution. The new draft law does not mention that it is an amendment to the constitutional provisions or any supplementary law in order to effect the existing constitutional provisions.
Instead, the new draft in section 15 states that “The provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other written law, and accordingly, in the event of any inconsistency between the provisions of this Act and such other law, the provisions of this Act shall prevail”. This in simple reading means that the provisions of this new draft Bill will prevail over article 105(3) and other relevant sections of the constitution.
The constitution is the supreme law of the country. No statute can override the provisions of the supreme law.
The new draft Bill is in fact a repeal and/or an amendment to the constitution. The manner in which repeal or the amendment to the constitution can be brought about is mentioned in articles 82 -84 of the constitution.
Article 82(1) states that a Bill for amendment of any provisions of the constitution should be placed on the order paper of the parliament unless the provision to be repealed, altered, or specified in the Bill is described in the long title thereof as being an Act for the amendment of the constitution. The draft Bill on Contempt of Court or Institution does not anywhere state such a long title as required by the constitution.
The constitution also states in Article 82(2) that the provisions for repealing the constitution should contain provisions replacing the constitution and is described in the long title thereof being an act for repeal and replacement of the constitution. The constitution also makes it a duty of the speaker not to place such a Bill which has not complied with the above mentioned provisions and not proceeded with unless it is amended as to comply with those requirements.
It will be useful for the public to know the full constitutional provisions regarding the amendment of the constitution because in several acts which has been proposed in recent months there has been an attempt to bring about repealing and amendment to constitutional provisions by introducing statutory provisions without following the constitutional process required for repealing and amendment of constitution. The result would be that the constitution itself will be merely treated as another statute which would be replaced by a new statute with the provision that the new statute will prevail over all previous laws.
For the benefit of the public we reproduce below the entire article 82 of the constitution.
82. (1) No Bill for the amendment of any provision of the Constitution shall be placed on the Order Paper of
Parliament, unless the provision to be repealed, altered or added, and consequential amendments, if any, are expressly specified in the Bill and is described in the long title thereof as being an Act for the amendment of the Constitution.
(2) No Bill for the repeal of the Constitution shall be placed on the Order Paper of Parliament unless the Bill contains provisions replacing the Constitution and is described in the long title thereof as being an Act for the repeal and replacement of the Constitution.
(2) If in the opinion of the Speaker, a Bill does not comply with the requirements of paragraph (1) or aragraph (2) of this Article, he shall direct that such Bill be not proceeded with unless it is amended so as to comply with those requirements.
(3) Notwithstanding anything in the preceding provisions of this Article, it shall be lawful for a Bill which complies with the requirements of paragraph (1) or paragraph (2) of this Article to be amended by Parliament provided that the Bill as so amended shall comply with those requirements.
(4) A Bill for the amendment of any provision of the Constitution or for the repeal and replacement of the Constitution, shall become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members (including those not present) and upon a certificate by the President or the Speaker, as the case may be, being endorsed thereon in accordance with the provisions of Article 80 or 79.
(5) No provision in any law shall, or shall be deemed to, amend, repeal or replace the Constitution or any provision thereof, or be so interpreted or construed, unless enacted in accordance with the requirements of the preceding provisions of this Article.
(6) In this Chapter, “amendment” includes repeal, alteration and addition.
While there are many other matters which are fundamentally contradictory to the constitution and also the law relating to contempt of court as prevailing in all commonwealth countries, it is first of all necessary to consider whether this Bill as it is should be proceeded with at all. As it directly violates the expressed constitutional provisions.