By R.M.B Senanayake –
The Ministers Karu Jayasuriya and Wijedasa Rajapakshe deserve our gratitude for spearheading the Freedom of Information Act. It will be an important step forward for liberal democracy in our country. But there is another barrier to freedom of information (FOI) with respect to the publication of news and information regarding what happens in the courts of our country.
Our courts are not functioning efficiently despite the number of courts being increased. The Marga Institute did a survey of the courts some years ago which shows the poor performance of our courts system. Cases are taking a long time to be finalized and there is a huge backlog of cases both civil and criminal. But nobody dares to criticize the courts system under a mistaken understanding of what constitutes ‘contempt of court’.
Every public official must be accountable for his performance and so should judicial officers. But proceedings are protracted and it seems to be that the lawyers are in charge of the proceedings rather than the judge. There are long delays in both civil and criminal cases. The deterrent effect of legal punishment seems a remote possibility for the would be criminal. True that all crimes are not pre-meditated. Yet there are hardened criminals who can be deterred only by the possibility of being punished and punishment must be swift and certain to be a deterrent. Minister W. Rajapakshe has suggested the re-introduction of the death penalty. The EU does not agree but can we compare the deterrent effects of the courts in Sri Lanka with that of the EU. Only 4% of the criminal cases are said to result in convictions. The Police are both inefficient and corrupt.
But under the mistaken notion that there should be no criticism of the courts, journalists are afraid to comment on what happens in the courts and don’t even like to report news of court proceedings except where the public has a special interest in a particular case. The Journalists attitude is understandable since journalists have been hauled up before courts on contempt charges and I remember even a senior editor like Manik De Siva having to answer in courts.
Courts of justice have an inherent power to punish all persons for contempt of their rules and orders, for disobedience of their process, and for disturbing them in their proceedings etc. Journalists are required to report court proceedings accurately. While in USA the press not only reports court cases but also comments on the judgments of the courts and some of them are critical. The traditional right of the higher courts to punish persons for contempt was not laid down in the law but individual judges decided its scope and enforcement. The relevance of the offence of contempt of court arises because of its implication on publications of court proceedings and judgments.
Contempt by publication
The law on contempt by publication must balance the right of a defendant to a fair trial, with the right of the publisher to freedom of expression. There are also concerns that the procedures for dealing with this form of contempt may not be as fair and efficient as possible. Innocent publication and distribution of matter should not be contempt
So Britain brought a law to define the scope of the offence of ‘contempt of court’ was necessary and passed such a law. India has done the same and even amended the Act several times.
I refer to the need for a new law of Contempt of Court as has been passed in the UK and in India. Presently the journalists do not know the limits with regard to the exercise of the power of the Courts to try persons for contempt of court. In USA journalists report and comment on the judgments of courts without the fear of being hauled up of for contempt of court. So journalists prefer not to take the risk and do not comment on the judgments or proceedings in the local courts. So the courts are completely immune from criticism. But of course our courts system is not functioning efficiently. Cases are not disposed of for long periods. So in the case of criminal cases punishment under the law fails to be a sufficient deterrent to crime.
I remember that Attorney at law and journalist Kishali Pinto-Jayawardena prepared a draft Contempt of Court law. It is necessary to enact such a law and the Minister of Justice should follow up the Freedom of Information law with a Contempt of Court law on the lines of the Indian law.
Democracy does not depend on constitution written on a paper, it is written in hearts and minds of the people who underrated that in our own self interest we have to maintain a civil and orderly society. Every one obeys the norm, rituals, culture and finally the written code of conduct. It is in our hearts and minds not in written papers. Every man should obey the law, including the king, prince, prime minister and the president. In Sri Lanka, we are having a population that has been misdirected by the mindless losers, and has become a lawless country. From this lawless population was selected and elected the corrupted criminals and scoundrels to the seat of power. These scoundrels have converted the law enforcement into a crime enforcement brigade; We need to streamline our courts system to ensure speedy trials.