Saturday 15 December 2018

Gajalakshmi Paramasivam

15 December 2018

Contempt of Court v Freedom of Speech

To my mind, Contempt of Court is valid only to the extent  Freedom of Speech on the basis of Belief is not restricted. Next to Truth that connects us Universally are laws that connect their believers subconsciously as well as consciously. As a litigant I believe I have every right not only to share my facts with the Courts but also to share my court experiences with the Public. I do not have the right to criticize the judges while the matter is being heard. As per my mind, I have not done that at any time. In terms of the recent decisions by the president of Sri Lanka – every investor in Sri Lanka has the natural  right to express her/his experience and interpretation of the law as per her/his belief. Interference happens only when one interrupts and overrides the interpretation of a senior within that institution – in this instance the Parliament and the Judiciary.

Mr Ranil Wickremesinghe was careful not to do that with the President’s Administrative ruling. He kept referring to the matter as being a question of law. I conclude that that was how his genuine commitment to law came to his support in his hour of need. Something that Mr Sirisena did not have.
There are reports that a Contempt of Court case has been filed in the Supreme Court against former Chief Justice Sarath N. Silva. The case is reported to have been  filed by Professors Chandraguptha Thenuwara, Hewa Waduge Cyril and Prashantha Gunawardena, under Article 105(3) of the Constitution of Sri Lanka. This article states as follows:

[(3) 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 : Provided that the preceding provisions of this Article shall not prejudice or affect the rights now or hereafter vested by any law in such other court, tribunal or institution to punish for contempt of itself.]

At Mallakam District Court, lawyer Yogendra, representing our opposition claimed that I was acting in contempt of court – by sharing my experience outside court. The District Court judge asked our lawyer Mr Kanagasingham to warn me. I wrote my feelings that it was not contempt of court to share my experience. In any case there was no mention of any judgment by me of the judge at that stage while the matter was in process. Even later when the judge said that I was behaving like a street woman, I shared my experience – including through Naan Australian book. I did not know what the law said. But I had already lost trust in that Court and I shared how I felt.
To my mind, Truth cannot be subdued by any human law. If Sri Lanka did have such a law – Mr  Yogendra was free to take action against me. I would have then considered such a law to be unjust law.
I therefore do not understand as to how these three professors who are NOT part of the Court system could have been affected by expressions by Mr Sarath N Silva. A member of the law profession has every right to do so on the basis that Mr Silva was part of the Judiciary as an elder. A lawyer who respected Mr Silva would therefore have conflict or excitement in her/his mind due to the active investments s/he has made  in the current Judiciary. But not others outside that circle of influence. It will be interesting to learn how the Sri Lankan judiciary handles this.
Article 14 (1) (a) states:

Every citizen is entitled to – the freedom of speech and expression including publication’
Freedom from restrictions help us bloom as individuals and as sovereign groups. Gays are recognized by law so they are not made juniors by heterosexuals.  Likewise age, gender, race etc. To my mind lawful acceptance as equals  is the release from suppression of nature.
The basis of that freedom is one’s Belief. The Petitioners have the onus to prove that their belief based rights have been damaged by Mr Silva, if their action is not to be in breach of Article 14 (1) (a) of the Constitution.

Article 105(3) of the Constitution is about the power of the Courts in contempt of court. The contempt itself needs to be felt by the Judiciary and its various support services. In terms of general public – to my mind the parallel is Defamation action.

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