Following are points for a concerned person’s letter to the Chief Justice and judges of the Supreme Court (SC) on the issue of the use of contempt of court law.
We are disturbed by the manner in which the power given to the SC under Article 105(3) of the Constitution (the power to punish for contempt with imprisonment and/or fine) has been used in the recent past. We refer particularly to the cases of torture victim Anthony Michael Emmanuel Fernando, and politicians S.B. Dissanayake and Ranjan Ramanayake.
Our concerns are as follows:
In all three of these cases, the sentences that have been imposed involve imprisonment. In the case of Fernando, for one year of rigorous imprisonment (RI) for allegedly talking out loud in court, in the case of Dissanayake for using the phrase “shameful court” in a public meeting outside courts to two years of RI, and in the case of Ramanayake referring to judicial corruption for which he was punished with RI for four years plus the loss of participation in elections for seven years. Already in the first two cases, the United Nations Human Rights Committee (UNHRC) having considered the communications made to it by Fernando and Dissanayake held that these sentences of imprisonments amounted to disproportionate punishment and that under international law, disproportionate punishment amounts to illegal detention. Under the Sri Lankan law, protection from illegal detention has been guaranteed by the Constitution by naming it as a violation of fundamental rights (FR). Thus, this practice of disproportionate punishment itself is a violation of the international and Sri Lankan laws and the fact that no reasons have been given for such disproportionate and harsh punishment aggravates the situation. Thus, this use of disproportionate punishments which is now getting established as a permanent practice is a threat to the very idea of a fair trial and also the notion of the rule of law. It is likely to have a deadening effect on the entire system as lawyers, litigants and anyone else who is dealing with the system of the administration of justice is likely to be seriously intimidated to pursue their claims for justice under such circumstances.
While Article 105(3) of the Constitution provides for the power to deal with contempt of court to the Supreme Court (SC) and the Court of Appeal (CoA) and the discussion relating to punishment by way of imprisonment and/or fine, the offence of contempt of court has not been defined by any law in Sri Lanka. In all laws which carry criminal punishments in Sri Lanka, each offence is defined in terms of the elements which constitute the offence and also the maximum punishment that a court is entitled to grant in case the case is proved beyond a reasonable doubt against the accused. Thus, the universal practice of defining an offence in Sri Lanka relating to all crimes including such serious crimes as terrorism, enforced disappearances, murder and rape is not followed in the case of offences under contempt of court. This practice seriously undermines a fair trial because without an accused knowing exactly what the offence he/she is charged with and the elements of that offence and the possible punishment, all rights in facing a trial will become not exercisable. Thus, such a person accused of contempt of court will be treated as a unique kind of accused unlike a person accused of any other crime. Among other things, this violates the basic fundamental rules of equality before the law which is also a FR enshrined in the Constitution and also one of the most basic human rights recognised under the international law.
Previously, Sri Lankan courts have defined that all the offences recognised in Sri Lanka are those which are being recognised under a statute. Thus, the uniform practice of Sri Lankan courts is to recognise criminal offences only if they are defined in statute, that is either in the Penal Code or by way of any other statute. This uniformly practised legal provision is an entrenched part of the Sri Lankan law and the violation of it will have a serious impact on the whole idea of offences as understood in Sri Lanka within the framework of the law.
There is also no procedure laid down for the conduct of a trial for contempt of court. Thus, it should be presumed that the same procedures as found in the Code of Criminal Procedure (CCP) regarding the conduct of a fair trial also apply to cases on contempt of court. The basics that are laid down in the CCP is that investigations into a crime could begin only when basic evidence is played before the investigating authority to the effect that a reasonable cause exists to undertake an investigation into a given offence. Thus, the existence of an offence in terms of the law is essential to begin even an inquiry into an offence. Thereafter, it is investigated by the procedures laid down in the criminal investigations divisions recognised under the law. After all the evidence is collected, if there is adequate grounds on which to proceed in filing charges or indictments for a particular offence, then the charges would either be filed by the particular investigating authority if it is allowed by the law or all the evidence should be placed before the Attorney General (AG). The duty of the AG is to go through all the evidence and decide whether the elements which constitute an offence have been established through the available evidence so that there is a likelihood of success of prosecution which may be brought before the relevant court which would hear the trial. No such investigations have been held in any of these three cases, thus an examination of the evidence by the AG was not possible as there was first of all no offence as defined by the law and secondly there had been no investigations as required by the CCP.
Once an indictment is filed before the relevant court, the accused is entitled to receive all the evidence that would be used against him/her during the trial. Thus, the accused becomes aware of the accusation against him/her and has time to prepare to answer to the details of evidence and thereby make a reasonable defence. No such procedure was followed in any of these three cases. Therefore, this trial is regarded as some kind of a special trial and not as the normal trials that are recognised under the Sri Lankan law. Thus, once again the principle of equality and the principle of equality before the law are violated. On the other hand, a fair trial is not possible without fulfilling the procedures set out above.
The Constitution only names the SC as the court that has the power to deal with contempt of court. This in terms of the Sri Lankan law means that the SC has the power to hear trials before the SC itself or before the CoA on contempt of court cases. It only gives the power of hearing and determining a case. However, the manner in which the trial is conducted has to be in terms of the legal procedure in Sri Lanka which applies to all offences. For example, the High Courts (HCs) have the power to hear and determine trials in very serious criminal offences. However, the manner in which the court hears and determines the case is determined by the laws which require that a fair trial should take place. As far as the duty to follow the procedures of a fair trial, there is no distinction between the power of HCs or the SC. The only difference is, in the case of contempt of court, the SC and the CoA have the power to conduct the trial before those courts. Thus, the denial of a fair trial procedure as mentioned above can be excused in terms of Article 105(3) of the Constitution.
Under the same Article 105(3), the SC or the CoA also have the discretion in granting sentences of imprisonment and/or a fine. The word “discretion” has no special meaning only for contempt of court cases. The word “discretion” of the courts has similar meaning as it is applied to any other court proceedings. In all court proceedings in Sri Lanka as well as within the common law, the basic principle is that the discretion must be exercised on the basis of laws that exist by way of statute. For example, in a normal criminal case, the statute will state for example that, a sentence of not more than 10 years could be made if the case is proved beyond a reasonable doubt. Within that context, the discretion of the court means that it could, considering the various mitigating factors or aggravating factors, either reduce the sentence or it could give a stronger sentence within the framework of the statutory limitations. However, since there is no statute laying down the maximum or minimum punishment in the case of contempt of court, the court is not in a position to exercise discretion till such an offence is created and the sentence is laid down by the statute. The laws and practises on the use of discretion have been well laid down under the Sri Lankan case law as well as in Britain and other common law jurisdictions where the principle that the law is first and discretion is after is well laid down.
In all criminal cases in Sri Lanka, there is a right to appeal. However, in the three cases mentioned above, the right of appeal had been denied. In the case of Fernando who applied for leave to the SC for appeal, it was summarily dismissed. Now the rule that is followed is that there is no appeal against a judgement of the SC regarding contempt of court cases. This again is a fundamental violation of the right to a fair trial. In even the most heinous crimes such as terrorism, enforced disappearances, murder and the like, there is a right to appeal. Only on this criminal offence of contempt of court, there is no such right of appeal. This again is a violation of the equality before the law and also a violation of natural justice.
Therefore, there are very serious problems associated with the manner in which Article 105(3) of the Constitution has been interpreted so far and this matter needs to be corrected to prevent the serious violation of basic rights of citizens enshrined in the Constitution and acknowledged by the highest courts of Sri Lanka.
(The writer is the Asian Human Rights Commission’s Policy and Programmes Director)
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The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.A letter to the Chief Justice on the use of contempt of court law
21 Feb 2022
A letter to the Chief Justice on the use of contempt of court law
21 Feb 2022
Following are points for a concerned person’s letter to the Chief Justice and judges of the Supreme Court (SC) on the issue of the use of contempt of court law.
We are disturbed by the manner in which the power given to the SC under Article 105(3) of the Constitution (the power to punish for contempt with imprisonment and/or fine) has been used in the recent past. We refer particularly to the cases of torture victim Anthony Michael Emmanuel Fernando, and politicians S.B. Dissanayake and Ranjan Ramanayake.
Our concerns are as follows:
In all three of these cases, the sentences that have been imposed involve imprisonment. In the case of Fernando, for one year of rigorous imprisonment (RI) for allegedly talking out loud in court, in the case of Dissanayake for using the phrase “shameful court” in a public meeting outside courts to two years of RI, and in the case of Ramanayake referring to judicial corruption for which he was punished with RI for four years plus the loss of participation in elections for seven years. Already in the first two cases, the United Nations Human Rights Committee (UNHRC) having considered the communications made to it by Fernando and Dissanayake held that these sentences of imprisonments amounted to disproportionate punishment and that under international law, disproportionate punishment amounts to illegal detention. Under the Sri Lankan law, protection from illegal detention has been guaranteed by the Constitution by naming it as a violation of fundamental rights (FR). Thus, this practice of disproportionate punishment itself is a violation of the international and Sri Lankan laws and the fact that no reasons have been given for such disproportionate and harsh punishment aggravates the situation. Thus, this use of disproportionate punishments which is now getting established as a permanent practice is a threat to the very idea of a fair trial and also the notion of the rule of law. It is likely to have a deadening effect on the entire system as lawyers, litigants and anyone else who is dealing with the system of the administration of justice is likely to be seriously intimidated to pursue their claims for justice under such circumstances.
While Article 105(3) of the Constitution provides for the power to deal with contempt of court to the Supreme Court (SC) and the Court of Appeal (CoA) and the discussion relating to punishment by way of imprisonment and/or fine, the offence of contempt of court has not been defined by any law in Sri Lanka. In all laws which carry criminal punishments in Sri Lanka, each offence is defined in terms of the elements which constitute the offence and also the maximum punishment that a court is entitled to grant in case the case is proved beyond a reasonable doubt against the accused. Thus, the universal practice of defining an offence in Sri Lanka relating to all crimes including such serious crimes as terrorism, enforced disappearances, murder and rape is not followed in the case of offences under contempt of court. This practice seriously undermines a fair trial because without an accused knowing exactly what the offence he/she is charged with and the elements of that offence and the possible punishment, all rights in facing a trial will become not exercisable. Thus, such a person accused of contempt of court will be treated as a unique kind of accused unlike a person accused of any other crime. Among other things, this violates the basic fundamental rules of equality before the law which is also a FR enshrined in the Constitution and also one of the most basic human rights recognised under the international law.
Previously, Sri Lankan courts have defined that all the offences recognised in Sri Lanka are those which are being recognised under a statute. Thus, the uniform practice of Sri Lankan courts is to recognise criminal offences only if they are defined in statute, that is either in the Penal Code or by way of any other statute. This uniformly practised legal provision is an entrenched part of the Sri Lankan law and the violation of it will have a serious impact on the whole idea of offences as understood in Sri Lanka within the framework of the law.
There is also no procedure laid down for the conduct of a trial for contempt of court. Thus, it should be presumed that the same procedures as found in the Code of Criminal Procedure (CCP) regarding the conduct of a fair trial also apply to cases on contempt of court. The basics that are laid down in the CCP is that investigations into a crime could begin only when basic evidence is played before the investigating authority to the effect that a reasonable cause exists to undertake an investigation into a given offence. Thus, the existence of an offence in terms of the law is essential to begin even an inquiry into an offence. Thereafter, it is investigated by the procedures laid down in the criminal investigations divisions recognised under the law. After all the evidence is collected, if there is adequate grounds on which to proceed in filing charges or indictments for a particular offence, then the charges would either be filed by the particular investigating authority if it is allowed by the law or all the evidence should be placed before the Attorney General (AG). The duty of the AG is to go through all the evidence and decide whether the elements which constitute an offence have been established through the available evidence so that there is a likelihood of success of prosecution which may be brought before the relevant court which would hear the trial. No such investigations have been held in any of these three cases, thus an examination of the evidence by the AG was not possible as there was first of all no offence as defined by the law and secondly there had been no investigations as required by the CCP.
Once an indictment is filed before the relevant court, the accused is entitled to receive all the evidence that would be used against him/her during the trial. Thus, the accused becomes aware of the accusation against him/her and has time to prepare to answer to the details of evidence and thereby make a reasonable defence. No such procedure was followed in any of these three cases. Therefore, this trial is regarded as some kind of a special trial and not as the normal trials that are recognised under the Sri Lankan law. Thus, once again the principle of equality and the principle of equality before the law are violated. On the other hand, a fair trial is not possible without fulfilling the procedures set out above.
The Constitution only names the SC as the court that has the power to deal with contempt of court. This in terms of the Sri Lankan law means that the SC has the power to hear trials before the SC itself or before the CoA on contempt of court cases. It only gives the power of hearing and determining a case. However, the manner in which the trial is conducted has to be in terms of the legal procedure in Sri Lanka which applies to all offences. For example, the High Courts (HCs) have the power to hear and determine trials in very serious criminal offences. However, the manner in which the court hears and determines the case is determined by the laws which require that a fair trial should take place. As far as the duty to follow the procedures of a fair trial, there is no distinction between the power of HCs or the SC. The only difference is, in the case of contempt of court, the SC and the CoA have the power to conduct the trial before those courts. Thus, the denial of a fair trial procedure as mentioned above can be excused in terms of Article 105(3) of the Constitution.
Under the same Article 105(3), the SC or the CoA also have the discretion in granting sentences of imprisonment and/or a fine. The word “discretion” has no special meaning only for contempt of court cases. The word “discretion” of the courts has similar meaning as it is applied to any other court proceedings. In all court proceedings in Sri Lanka as well as within the common law, the basic principle is that the discretion must be exercised on the basis of laws that exist by way of statute. For example, in a normal criminal case, the statute will state for example that, a sentence of not more than 10 years could be made if the case is proved beyond a reasonable doubt. Within that context, the discretion of the court means that it could, considering the various mitigating factors or aggravating factors, either reduce the sentence or it could give a stronger sentence within the framework of the statutory limitations. However, since there is no statute laying down the maximum or minimum punishment in the case of contempt of court, the court is not in a position to exercise discretion till such an offence is created and the sentence is laid down by the statute. The laws and practises on the use of discretion have been well laid down under the Sri Lankan case law as well as in Britain and other common law jurisdictions where the principle that the law is first and discretion is after is well laid down.
In all criminal cases in Sri Lanka, there is a right to appeal. However, in the three cases mentioned above, the right of appeal had been denied. In the case of Fernando who applied for leave to the SC for appeal, it was summarily dismissed. Now the rule that is followed is that there is no appeal against a judgement of the SC regarding contempt of court cases. This again is a fundamental violation of the right to a fair trial. In even the most heinous crimes such as terrorism, enforced disappearances, murder and the like, there is a right to appeal. Only on this criminal offence of contempt of court, there is no such right of appeal. This again is a violation of the equality before the law and also a violation of natural justice.
Therefore, there are very serious problems associated with the manner in which Article 105(3) of the Constitution has been interpreted so far and this matter needs to be corrected to prevent the serious violation of basic rights of citizens enshrined in the Constitution and acknowledged by the highest courts of Sri Lanka.
(The writer is the Asian Human Rights Commission’s Policy and Programmes Director)
…………………………………
The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.