by C.A.Chandraprema Courtesy The Island

May 13, 2017, 7:44 pm

Two NGO activists have filed a contempt of court plaint against Dr Anuruddha Padeniya the President of the GMOA over certain comments he made at a public meeting held to demand the ‘state-ization’ of the SAITM medical course on 7 April 2017. The gist of what Padeniya said at that meeting was that in 2010 the GMOA had put out a 20 page document outlining the shortcomings in the medical course offered by SAITM. At the time this document was released, the Minister of Health was Maithripala Sirisena. The latter had seen the report and he had told the GMOA that he too agrees with the contents of that report and had asked what he should do about it as the Minister of Health. The GMOA had suggested to him that since this was a report prepared by a trade union, he should appoint an official five member committee through the Health Ministry to go into the issues raised in that report.

Dr Anuruddha Padeniya

Padeniya said that a five member committee made up of medical professionals, lawyers and administrators was duly constituted and the GMOA and other parties had made representations before this committee. The committee had put out their report in 2012 as the official view of the Ministry of Health and these had run parallel to the earlier report compiled by the GMOA. Padeniya complained that the present Minister of Health has not presented these two reports to courts. He stated that in every court case relating to SAITM that came up, the GMOA had tried to present these two reports but every time they did so, the lawyers representing SAITM had withdrawn the cases. He stated that the reason why the GMOA has had to come on to the streets is because these two reports have not been presented to courts. Padeniya stated that the Attorney General was also complicit in this by not presenting these two reports to court.

He stated that “some politicians say that if the Medical Council acts against a decision handed down by the judiciary, they will be taken to courts. Tell them to take the Medical Council to any court. If the courts can’t dispense justice, if the courts are unable to look at the two reports published by the GMOA and the five member committee appointed by the Health Minister, and they can look only at what is put before them by the Attorney General, what kind of justice can the people of this country expect?” Taking himself as an example, Padeniya said that if he goes to hospital and makes a decision based entirely on what is said to him by other doctors below him, how can he be considered a medical specialist? “If the court looks only at whatever is put before them by the Attorney General, what then is the purpose of paying salaries to judges?” That is the gist of what what Dr Padeniya said at that meeting which is now subject to contempt of court proceedings.

The present courts system in this country was set up by the British and the contempt of court laws that were introduced in the colonies served a purpose other than just upholding respect for the judiciary. As far back as 1899, Lord Michael Morris observed in McLeod v. St. Aubyn that contempt of court by ‘scandalizing the court’ had become obsolete in Britain, and added significantly that however, “in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of Court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity of and respect for the Court!” In this matter, it is important for us to stop thinking like ‘natives’ and to remember that we are now a sovereign nation and not a colony of some master that needs to preserve colonial rule by restricting the right of the natives to comment on the workings of the colonial courts system. This is also a democracy where the people are sovereign.

Scandalizing the court

It is important to see how the law in relation to the contempt of court has evolved in Britain itself (as against the colonies) with the revolution in communications and the appearance of the internet and the social media and other such developments. The observations of Lord Morris in McLeod v. St. Aubyn show that for well over a century, the idea has been prevalent at the very highest levels of the British judiciary that the category of contempt of court called scandalizing the court is obsolete. The British Law Commission has compiled a list of contempt of court and the only category of contempt of court that Padeniya’s comments would fall into would be ‘scandalizing the court’.  The British Law Commission (BLC) defines the offence of scandalizing the court as ‘publishing material or doing other acts likely to undermine the administration of justice or public confidence therein’.

It may be argued that when Padeniya poses the question as to why judges are paid salaries if they only look at what is put before them by the Attorney General, and questions what kind of justice people can expect in such circumstances, that he has indeed ‘scandalized the court’ because what he said may be construed as undermining confidence in the judiciary. However, the British Law Commission defines ‘publishing material or doing other acts likely to undermine the administration of justice or public confidence therein’ as having occurred only when there is ‘scurrilous abuse of the judiciary or imputing to them corruption or improper motives’. In this instance, Padeniya did neither. He was expressing a grievance about the way the courts functioned.

This grievance was expressed in public in the context where the GMOA had not been allowed to join as an intervenient petitioner in a case filed by students of SAITM in the Supreme Court against the failure of the authorities to provide them with clinical training in government hospitals. The GMOA had thus been debarred from stating their grievances in court. If someone argues now that the views that Padeniya expressed in public amounts to contempt of court, the GMOA will have no forum to express their views and will effectively have been gagged and silenced. This is why it is vitally important to take note of the developments in Britain with regard to this whole concept of ‘scandalizing the court’. The British Law Commission observes in this regard that:

“The rationale for an offence of scandalizing the court derives from the need to uphold public confidence in the administration of justice. In many ways, this need is particularly acute in a democracy, where the power and legitimacy of the judicial branch of government derives from the willingness of the people to be subject to the rule of law. In consequence, the public must have faith in the judicial system. Yet, in a democracy, the public also has the right to speak freely about the exercise of power, which must include the freedom to criticize the judicial system and the judiciary…Balancing this right to freedom of expression with the importance of upholding public confidence in the administration of justice is at the heart of the debate about the offence of scandalizing the court”.

What the Law Commission said

The British Law Commission (BLC) observed that in the 1985 case of Secretary of State for Defence v Guardian Newspapers Ltd  it had once again been stressed that scandalizing the court as a branch of contempt of court had been ‘virtually obsolescent’ in England and Wales and the last recorded successful prosecutions were in 1930 and 1931 and that most of the cases reported in England and Wales since the 1930s have been appeals to the Privy Council from Commonwealth countries (the very colonials that Lord Morris deemed to be most in need of contempt of court laws!) and that it appears that the offence of scandalizing the court has been used more frequently in Asia and the Pacific Rim than in England and Wales. (A telling statement that our legal fraternity should take good note of.)

The BLC also pointed out that it has been argued that the offence may be necessary as a means of preserving the dignity of and respect for the courts in jurisdictions where political conditions ‘are less stable’ than in England and Wales. (Again an obvious reference to the former colonies inhabited by us natives.) On the other hand, it has been argued that prosecutions for this offence may be counterproductive, as they may be perceived, rightly or wrongly, as attempts to suppress political dissent. (This is the post-colonial version of Lord Morris’ dictum with the British colonial master replaced by the local politician and the ‘native’ replaced by ‘the people’. If the people are to have due respect for the courts, the contempt of scandalizing the court has to be implemented in the now independent former colonies, but it’s not needed in more ‘civilized’ places like Britain.)

Interest in the offence in the UK was revived in March 2012 when the Attorney General for Northern Ireland obtained leave to prosecute a Member of Parliament, Peter Hain, for statements made in a book he had written criticizing a judge for his handling of a judicial review application. Hain’s counsel had argued that the facts did not amount to contempt of court; and also questioned whether scandalizing the court still existed as an offence. The prosecution was later discontinued. In the wake of this affair, two distinguished law lords, Lord Anthony Lester and Lord David Pannick, called for the offence of scandalizing the court to be abolished. The offence of ‘scandalizing the judiciary’ has now been abolished in England and Wales by Section 33 of the Crime and Courts Act of 2013 – a point that all former colonials should take note of.

Tracing the history of the concept of scandalizing the court, the BLC observed that the first mention of this concept was in a draft judgment in the 1765 case of R. v. Almon where Justice John Wilmot observed that “The arraignment of the justice of the judges, is arraigning the King’s justice; it is an impeachment of his wisdom and goodness in the choice of his judges, and excites in the minds of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them; and whenever men’s allegiance to the laws is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever…”

Even though a British judge said so in 1765, as we saw earlier, more than a century later, by 1899, another distinguished British judge said that the concept of scandalizing the court was virtually obsolete. In an early British case, R v. Grey (1900) a journalist was actually found guilty of scandalizing the court by describing a judge as an “impudent little man in horsehair, a microcosm of conceit and empty-headedness” and for stating that while no newspaper can exist except upon its merits, that is a condition ‘from which the bench, is exempt’. Even in delivering a guilty verdict in such a clear cut case of insulting a judge, the Lord Chief Justice of England Charles Russell took care to distinguish that from justifiable criticism. He observed in his judgment “Judges and courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could or would treat that as contempt of court.” It should be borne in mind that this case was heard way back in 1900. It can be seen from this that there has been a long standing and visceral dislike at the highest levels of the judiciary in Britain against penalizing anyone for justifiable or reasonable criticism of a judge or the judicial process.

The right to demand justice

In 1936, a case from Trinidad and Tobago, Andre Paul Terence Ambard v. The Attorney General came before the Privy Council in appeal. This was a case where the editor of a newspaper in Trinidad and Tobago published an article finding fault with the subjectivity of two judgments that were delivered within days of one another. The newspaper observed that the infliction of the sentence is entirely at the discretion of the judge who has wide latitude from a few days to life-long imprisonment for the crime of attempted murder and that some way should be devised for the greater equalization of punishment with the crime committed. The Supreme Court of Trinidad and Tobago imposed a fine of 25 Sterling pounds on the newspaper editor on the grounds that this article had been written with the direct object of bringing the administration of the criminal law in this colony into disrepute.

Lord James Atkin observed in upholding the appeal against the Trinidad and Tobago Supreme Court that there is no evidence in the article at the centre of the controversy or any facts placed before the court to justify the finding that contempt of court has been committed and that “no wrong is committed by any member of the public who exercises the ordinary right of criticizing in good faith in private or public the public act done in the seat of justice… provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue : she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men”.

The British Law Commission observed that “formerly much emphasis was placed on the distinction between respectful criticism and scurrilous abuse. Increasingly today the style of the publication alleged to constitute the offence is not considered relevant, and vigorous criticism is allowed… no criticism of a judgment, however vigorous, can amount to contempt of court, providing it keeps within the limits of reasonable courtesy and good faith…”. The BLC observes that today, even ‘reasonable courtesy’ no longer seems to be a requirement. According to Justice James Munby in Harris v Harris (1995) “… that which is lawful if expressed in the temperate or scholarly language of a legal periodical… does not become unlawful simply because expressed in the more robust, colourful or intemperate language of the tabloid press or even in language which is crude, insulting and vulgar … Moreover, a much more robust view must, in my judgment, be taken today than previously of what ought rightly to be allowed to pass as permissible criticism. Society is more tolerant today of strong or even offensive language. Society has in large part lost its previous habit of deferential respect. Much of what might well even in the comparatively recent past, have been considered by the judges to be scurrilous abuse of themselves or their brethren has today, as it seems to me, to be recognized as amounting to no more than acceptable, if trenchant criticism”.

Acceptable and unacceptable criticism

The BLC observes that this more relaxed attitude is reflected in the fact that the Daily Mirror (in Britain) was not prosecuted when it published upside-down photographs of three Law Lords with the words ‘You Fools!’.  At this point, Sri Lankans would begin to think that the British press was exercising too many liberties with the judiciary. But an upside down photograph of three Law Lords with the caption ‘You fools!’ is nothing compared to what regularly happens in this country. Sri Lankan websites which mainly operate from overseas regularly publish articles vilifying judges, accusing them of being on the take and even publishing scurrilous stories about their sex lives. This happens when any judge delivers a ruling not to the liking of that website owner. The Sri Lankan judiciary has not been able to do anything about this even though such articles are always published with a view to influencing the administration of justice.

Compared to what the Sri Lankan judiciary has to go through on a regular basis at the hands of the websites, whatever mild indignities that British judges suffer at the hands of the British press, pales into insignificance. The British Law Commission is therefore right when they speak in favour of leaving even ‘robust’ criticism of judges and judgments outside the pale of contempt of court. This approach makes sense because if reasonable and justifiable criticism of the courts is allowed, the personal vilification of judges through the internet and social media will appear to the public as what it is – vilification with ulterior motives, and not criticism.  The BLC has expressed views in favour of considering it a sufficient defence that the allegations are true in ‘scandalizing the court’ proceedings. They also spoke in favour of making ‘intent’ a part of the test and not acting maliciously or deliberately trying to impair the administration of justice should grant immunity from prosecution. The BLC was moreover in favour of making it a sufficient defence that the allegations form part of a fair discussion on a question of public interest.

The BLC has approvingly quoted the words of Lord Denning in the 1968 case of R v Metropolitan Police Commissioner ” …we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”

“It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice…” This Law Commission paper of 2012 obviously had much to do with the abolition of the offence of scandalizing the court in England in 2013.

The contempt of court proceedings against Padeniya will be a defining moment for the freedom of speech in this country. If one applies the tests mentioned by the BLC to what Padeniya said at that meeting, it’s very clear that he was not seeking to impair the administration of justice but to seek justice. Furthermore, the matter he spoke about is undeniably of public interest. The court can perhaps call for the two reports on the SAITM medical course mentioned by Padeniya, one written by the GMOA and the other by the Ministry of Health, to ascertain whether the non-presentation of these two reports to the courts by the government had in fact resulted in justice being denied to the GMOA.