place in policy formulation. As much as criminal law is used to respond to online gender-based
violence and violations of bodily autonomy, it cannot be used to curtail legitimate expression of
sexual and gender identities. Laws regulating the online space that are enacted on the pretext of
protecting women and children serve no purpose if women, children, and queer people have to
worry about freely existing online. They must protect the freedom of expression online for women,
queer people and children by refraining from censoring their online expression and content
relating to sexual and reproductive health.
08.
CONTEMPT OF COURT
The Sri Lankan Constitution addresses contempt of court, with the Supreme Court deriving its
authority primarily from Article 105(3) of the Constitution. This provision, when read alongside
Article 136, grants the Supreme Court broad rule-making powers. Specifically, Article 105(3)
empowers the Supreme Court to both establish rules regarding contempt and to punish contempt,
whether it occurs within or outside the court’s confines. These wide powers have been subject to
criticism as there is virtually unlimited discretion accorded to the Supreme Court to adjudicate in
contempt matters (Asian Human Rights Commission, 2022).
It’s essential to juxtapose these powers with the fundamental right to freedom of speech and
expression, including publication, as articulated in Article 14(1) (a) of the Constitution, which acts
as a crucial counterbalance to the authority of the Supreme Court in matters of contempt. The
jurisdiction of the Supreme Court over contempt, therefore, is theoretically circumscribed by the
protections afforded by the fundamental right to freedom of speech and expression.
The law on contempt of court in Sri Lanka was not codified in a single piece of legislation till the
enactment of the Contempt of Court, Tribunal or Institution Act No. 8 of 2024 (CCA). Despite the
long absence of specific legislation on contempt of court till now, Sri Lanka has a wealth of
jurisprudence emanating from the judiciary regarding contemptuous behaviour. However, the lack
of a dedicated legislative framework meant that the understanding and application of contempt
laws were often subject to interpretation, leading to inconsistencies, ambiguities and arbitrariness
in its enforcement. Dr. Gehan Gunatilleke, highlighted the need for a more refined approach to the
contempt law in Sri Lanka, emphasising the necessity to distinguish between different types of
contempt based on their nature (G. Gunatilleke, personal communication, 10 January, 2024).
The CCA includes provisions designed to balance freedom of expression and contempt, and
Sections 3(2)(d)(ii) and (iii), interpreted alongside the term “publish”3 extend the Act’s scope to
Contempt of a court, Tribunal or Institution Act 2024, Section 16; ‘Publish’ means, to disseminate, distribute, exhibit,
provide or communicate by oral, visual, written, electronic or other means including by way of newspaper, radio, television
or through the use of the internet or other online communication system, to the public at large or a member of the public,
and includes causing to be published, and “publication” is to be construed accordingly.
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