The supreme court and the court of appeal are given the authority to address judicial disobedience (contempt of court) under Article 105(3) of the constitution, and they may discuss the appropriate punishment – an imprisonment term, a monetary fine, or both – at this time, no law in Sri Lanka that specifically defines what constitutes judicial disobedience. Each offence under the criminal laws in Sri Lanka is described in terms of the element that makes up the offence as well as the highest penalty that the court may impose, if the charge against the accused is proven accurate beyond a reasonable doubt.
This practice of holding trials for vague offences significantly jeopardizes the integrity of the legal system, since an accused man or woman cannot exercise any of his legal rights during a trial, if he/she is unaware of the precise offence with which he/she had been charged, its parts, and potential penalties. As a result, a person charged with contempt of court will be treated differently from someone suspected of any other offence. This, among other things, breaches the fundamental principles of equilibrium before the law, a fundamental right guaranteed by Sri Lanka’s constitution and one of the most fundamental human right aspects acknowledged by international law.
A trial for contempt of court is not conducted according to any established procedure either. Therefore, it should be assumed that the instances of contempt of court should be handled similarly to criminal process cases in terms of the conduct of a fair trial. The fundamental rules of criminal procedural court are that inquiries into a crime may only initiate when the probing authority is presented with basic evidence indicating that there is a good basis to look into a specific offence. Therefore, it is necessary to establish an offence in legal terms before even initiating a probe into an offence.
The Attorney General’s (AG) prime responsibility is to review all the evidence and determine whether the elements of an offence have been proved with the evidence that is now available and if there is a chance that a prosecution would succeed before the appropriate court, which would hear the trial. None of these three instances of contempt of court have seen the conducting of such investigations. As a result, the AG was unable to examine the evidence, since there was neither an offence as defined by law nor an inquiry as required by the criminal process code.
The Supreme Court or the Court of Appeal may sentence someone to jail, to pay a fine, or both. There is no specific definition associated with the word “discretion” in contempt of court cases. The definition of “court discretion” is the same as when it refers to other judicial actions. The fundamental rule that is prevalent in all legal procedures in Sri Lanka, as well as in the common law, is that the discretion must be applied in accordance with statute-based legislation. For instance, the law stipulates that in a typical criminal case, if the case is proven beyond a reasonable doubt, a term of not more than 10 years imprisonment may be imposed. In the light of this; according to the court’s deliberation, the sentence might be decreased or increased while still being within the statutory parameters by taking into account a variety of aggravating or mitigating considerations.
However, until such an offence is founded and the penalty spectrum with restrictions is set down by legislation, the court will not be in a position to exercise discretion because there is no statute laying down the maximum or minimum punishment in the instance of contempt of court. In Sri Lanka’s legal framework, as well as in Britain and other countries where common law is exercised, the concepts linked to the use of discretion are thoroughly written down, the rules and practices on the use of discretion have been well established.
Anthony Fernando v. Sri Lanka, (UN Doc. CCPR/C/83/D/1189/2003 (2005) who was found guilty for contempt of court and was sentenced to one-year rigorous imprisonment. After the matter was inquired into by the UN Human Rights Committee, it was held that whatever the merits of the case that might have been, the sentence of one year for contempt of court is a violation of the ICCPR and of the Optional Protocol to which Sri Lanka is a signatory.
UN human Rights Committee expressed its view on another application which was filed by Dissanayake Mudiyanselage Sumanaweera Banda (S.B. Dissanayake) (Communication No. 1373/2005) who complained that by imposition of two years rigorous imprisonment for contempt of court by the Sri Lankan Supreme Court, his rights guaranteed under the ICCPR have been violated by Sri Lanka as a state party. The UN Human Rights Committee found that the author’s detention was arbitrary and in violation of Article 9, Paragraph 1.
The UN Human Rights Committee said in its verdicts the following:
“The penalty imposed was a one/two-year term of “Rigorous Imprisonment”. No reasoned explanation has been provided by the court or the State party as to why such a severe and summary penalty was warranted, in the exercise of a court’s power to maintain orderly proceedings. Article 9, paragraph 1, of the Covenant that forbids any “arbitrary” deprivation of liberty. The imposition of a draconian penalty without adequate explanation and without independent procedural safeguards, falls within that prohibition.”
Later cases of Ranjan Ramanayake and Ajith Prasanna, the supreme court decided to impose four years rigorous imprisonment. It raises a number of issues surrounding Sri Lankan legislation on contempt of court. There have been several complaints over a long period of time regarding Sri Lanka’s lack of a legislation governing contempt of court and the disproportionate punishments.
At the same time, Indian judiciary portrays a different approach. A well-known lawyer, Prashant Bhushan was recently found guilty of contempt of court after publicly criticizing the country’s Chief Justice, while he was still in office in a single tweet, and four other Chief Justices in another. Although the court fined him one rupee as a symbolic punishment for contempt. In this case, the Supreme Court also brought up an earlier interview which Prashant Bhushan gave in 2009, in which he charged 8 out of the 16 then-current Chief Justices of corruption. Arundhati Roy, a well-known international author and an Indian citizen, was accused of contempt of court and sentenced to one day in prison in another well-known case.
The Bar Association of Sri Lanka, even at one point offered a draft of such a statute, but it was eventually ignored. As a result, according to the UN Human Rights Committee’s own highly harsh condemnation, Sri Lanka’s conduct in contempt of court cases, notably on the imposition of lengthy terms, amounts to arbitrary imprisonment and is against both the ICCPR and the Sri Lankan constitution. This merit should be brought up for serious discussion by the public and international.
Kathirtharsini Parameswaran
(The author of this article Kathirtharsini Parameswaran is pursuing a Master of International Law from the Department of Legal Studies, South Asian University in New Delhi, India. She holds an LLB (Hons) from University of Jaffna, Sri Lanka. Kathirtharsini has been a researcher and mooter in prestigious moot courts such as Jessup and Hendry Dunant, mainly focuses on International Human Rights law, International Criminal Law and Humanitarian law. She is currently working as a researcher in Child Protection Force (a civil society organization based in Sri Lanka). She has shown a significant interest in International Marine law and did her thesis based on the ship registration standards.)
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