By Basil Fernando –
Basil Fernando
The draft Bill entitled ‘Contempt of Court, Tribunal or Institutions’, has been included in the parliament’s order paper and the issue of the constitutionality of this Bill will now be subjected to debate. There are several key questions arising from this draft Bill. These are:-
Does this proposed law amounts to repeal or amendment of the constitution?
This question arises because of Article 105(3) of the constitution which has already provisions for dealing with the contempt of court. The relevant portion is as follows:
“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”
The question that follows is as to the link between the proposed Bill and its provisions and the above mentioned articles of the constitution relating to contempt of court.
The draft bill makes no mention about any such link between the proposed law and the constitutional provisions relating to the same issue.
The implication that may be drawn is that this draft Bill is a repeal or an amendment to the constitution. It is a repeal because the new provisions of the act replaces the existing provisions of the constitution. The new draft law does not mention that it is an amendment to the constitutional provisions or any supplementary law in order to effect the existing constitutional provisions.
Instead, the new draft in section 15 states that “The provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other written law, and accordingly, in the event of any inconsistency between the provisions of this Act and such other law, the provisions of this Act shall prevail”. This in simple reading means that the provisions of this new draft Bill will prevail over article 105(3) and other relevant sections of the constitution.
The constitution is the supreme law of the country. No statute can override the provisions of the supreme law.
The new draft Bill is in fact a repeal and/or an amendment to the constitution. The manner in which repeal or the amendment to the constitution can be brought about is mentioned in articles 82 -84 of the constitution.
Article 82(1) states that a Bill for amendment of any provisions of the constitution should be placed on the order paper of the parliament unless the provision to be repealed, altered, or specified in the Bill is described in the long title thereof as being an Act for the amendment of the constitution. The draft Bill on Contempt of Court or Institution does not anywhere state such a long title as required by the constitution.
The constitution also states in Article 82(2) that the provisions for repealing the constitution should contain provisions replacing the constitution and is described in the long title thereof being an act for repeal and replacement of the constitution. The constitution also makes it a duty of the speaker not to place such a Bill which has not complied with the above mentioned provisions and not proceeded with unless it is amended as to comply with those requirements.
It will be useful for the public to know the full constitutional provisions regarding the amendment of the constitution because in several acts which has been proposed in recent months there has been an attempt to bring about repealing and amendment to constitutional provisions by introducing statutory provisions without following the constitutional process required for repealing and amendment of constitution. The result would be that the constitution itself will be merely treated as another statute which would be replaced by a new statute with the provision that the new statute will prevail over all previous laws.
For the benefit of the public we reproduce below the entire article 82 of the constitution.
82. (1) No Bill for the amendment of any provision of the Constitution shall be placed on the Order Paper of
Parliament, unless the provision to be repealed, altered or added, and consequential amendments, if any, are expressly specified in the Bill and is described in the long title thereof as being an Act for the amendment of the Constitution.
(2) No Bill for the repeal of the Constitution shall be placed on the Order Paper of Parliament unless the Bill contains provisions replacing the Constitution and is described in the long title thereof as being an Act for the repeal and replacement of the Constitution.
(2) If in the opinion of the Speaker, a Bill does not comply with the requirements of paragraph (1) or aragraph (2) of this Article, he shall direct that such Bill be not proceeded with unless it is amended so as to comply with those requirements.
(3) Notwithstanding anything in the preceding provisions of this Article, it shall be lawful for a Bill which complies with the requirements of paragraph (1) or paragraph (2) of this Article to be amended by Parliament provided that the Bill as so amended shall comply with those requirements.
(4) A Bill for the amendment of any provision of the Constitution or for the repeal and replacement of the Constitution, shall become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members (including those not present) and upon a certificate by the President or the Speaker, as the case may be, being endorsed thereon in accordance with the provisions of Article 80 or 79.
(5) No provision in any law shall, or shall be deemed to, amend, repeal or replace the Constitution or any provision thereof, or be so interpreted or construed, unless enacted in accordance with the requirements of the preceding provisions of this Article.
(6) In this Chapter, “amendment” includes repeal, alteration and addition.
While there are many other matters which are fundamentally contradictory to the constitution and also the law relating to contempt of court as prevailing in all commonwealth countries, it is first of all necessary to consider whether this Bill as it is should be proceeded with at all. As it directly violates the expressed constitutional provisions.
Douglas / July 27, 2023
Can we have a provision in this “Draft Bill” to convict the LAW ENFORCEMENT AGENTS ( Police; AG & Members and all officers of the Bribery Commission etc.) including members of the Judiciary who act in “CONTEMPT” of NATURAL JUSTICE and RULE OF LAW?
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Kanapathy Varunan / July 28, 2023
FR petitions, according to our constitution should be heard and disposed of within two months. What happens if it is not adhered to by the Supreme Court?
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Ajith / July 29, 2023
What happens if it is not adhered to by the Supreme Court?
Nothing.
“The panel of seven judges ordered the former president to pay 100m rupees (£220,000) from his personal funds into a compensation fund for victims and their families, while the former police chief Pujith Jayasundara and former state intelligence services head Nilantha Jayawardene were ordered to pay 75m rupees each, and the former defence minister was ordererd to pay 50m rupees.”
What happened? Does any one know? Now more than 6 months gone.
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Ajith / July 29, 2023
What happens if it is not adhered to by the Supreme Court?
What happened to the Bond Scam master mind the Singaporean Central Bank Governor?
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Buddhist1 / July 28, 2023
Judiciary has totally lost the confidence of not only the citizens of the country but also the politicians. In such a circumstance, the politicians can bring any bill to the parliament and pass it. These bills could be bills that would bring the courts under the parliament. This is also easy today as the President has only one single vote in the parliament and the SLPP which is full of crooks who had and have bribery and corruption cases filed against them are MPs.
In my opinion the Judiciary has to be made v. This could only be done by appointing the next Chief Justice who is a Sri Lankan and living abroad and has an unblemished record and is a practicing senior lawyer or a judge. This is the only way we can cleanup the Judiciary.
In my opinion, the Judiciary has made decisions for the benefit of the politicians and not in strict accordance with the law. This is clearly seen when the present Chief Justice was the Attorney General he filed many cases against politicians under bribery and corruption laws. When he became the Chief Justice the present Attorney General, maybe as a thank you to the politicians who appointed him withdrew the cases declaring that there were two signatures missing.
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Buddhist1 / July 28, 2023
Buddhist – continuation.
This could have easily been resolved if the Chief Justice to save his face and the integrity of the Judiciary declared the missing signatures related cases are voidable but not void and continued with the cases. Unfortunately, the Chief Justice did not do it and it showed that he has no self-respect or respect for the laws of the land as the bribery and corruption occurred, and that is the reason the cases were filed by him and the missing signatures do not invalidate those actions of the crooks.
Another classic case we are witnessing today – Dayana Gamage’s case. The respective immigration officers have proved beyond doubt with documents that she is a British Citizen and illegally sits in the parliament as an MP and also she has obtained not one but two SL passports one of which is a diplomatic passport. What do the judges do – they declare a split vote. Maybe a Judge was influenced by the politician or was scared to take a decision against a politician. This again clearly shows that Judiciary in SL needs to grow up.
The only way forward for SL to have a strong Judiciary is by appointing the next Chief Justice by selecting a Sri Lankan living abroad or lived abroad who has an unblemished record and is a practicing senior lawyer or a judge.
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Douglas / July 28, 2023
Buddhist1: Thank you for your prefatory comment on what I briefly said.
The other day a court case came up in Galle Magistrate courts filed against a hotel owner, his son, and the accountant for stealing money (foreign currency of US $ 61,000.00; Ruble 19500.00 & Euro 200.00) belonging to a Russian couple who were residing in a hotel at Unawatuna. The Police stated, in answer to a question from the Magistrate, in court how the “Hotel Owner” was released on telephone instructions given by the CID Director and the IGP.
The Magistrate thereupon instructed the Police to consult the Attorney General and file an action against the IGP and the Director of the CID. Will this happen? It would be a “Miracle” then, if that happens. Will the Magistrate find out what happened and what action was taken against IGP and Director CID at the next hearing?
The case you mentioned regarding MP Dayana Gamage is the latest travesty to Justice that even would receive International attention. This is “SAUBABYE IDIRI DEKMA” .
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Captain Morgan / July 28, 2023
Although there are about 10,000 lawyers operating in this country only about a 100 of them are conversant to some extent with Constitutional Law. And it seems to me that only about 10 or so lawyers here have a truly deep understanding of this special area of law. That is why so many monumental oversights occur when amending constitutions and drafting other laws that conflict with the constitution. Those persons in the legal draftsman’s office are only good at drawing up laws that infringe human rights and personal freedom.
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Lasantha Pethiyagoda / July 28, 2023
The House of Thieves and Robbers is not ethically, morally or spiritually entitled to pass any laws. That is because they are in breach of every conceivable law that is written to keep people honest and clean. Those bastards love it when the people’s voices are stifled, hands tied and pushed away from anything to do with the country. So, bringing contempt laws superseding existing laws which themselves are designed to control the people against their oppressors amounts to a black joke that is tragic and loathsome.
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davidthegood / July 29, 2023
LP, Thieves, bastards, controllers, not enough. Liars, murderers, sorcerers are eternally in the Lake of fire and realise too late. Rev.21,8
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RBH59 / July 29, 2023
Does The Proposed Contempt Of Court Bill Amount To 23rd Amendment To The Constitution?
Ranil himself says that he doesn’t have the people’s power to take a decision in all party conferences that’s why the people need the election on signing he is happy He knows where to tell I have power and dont have power. and leave the problem for the future.Waiting hurts. Forgetting hurts. But not knowing which decision to take can sometimes be the most painful
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deepthi silva / July 30, 2023
when the entire nation is rotten ,can only the judges be good ?
What is the difference between Diana Gamage and Rohini Marasinghe ?
Both are foreign ( dual citizens) making careers here , making maximum profit in this poor country
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Native Vedda / July 30, 2023
deepthi desperate silva
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“………….. making maximum profit in this poor country”
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Poor country?
Who impoverished this once a rich island?
Some years ago Mahinda was boasting the island had reached the status of a middle income country?
Was he lying?
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deepthi silva / July 30, 2023
How much did the country lose in the war ?
As for MR , he is another version of a Vedda !
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Native Vedda / July 31, 2023
deepthi desperate silva
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“How much did the country lose in the war ?”
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What did the country lose between 1971 and 2009, and in 1958, 1977, 1983, ….. due your paranoia and maddening rage, … those who were dealing with merchants of death, profiteering middlemen and suppliers of war goods, commissions, … and destruction caused by rana-viruses to civilian and civilians owned properties, ….
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You mean Veddahs started the war, massacred people and profited from it?
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deepthi silva / July 31, 2023
Vedda don’t you understand English ? I told you that I don’t want to descend to your level so I ignore your comments .
But you obviously have a fixation with me and continue to comment and put thumbs down on my comments. Perhaps it is only natural. I contemptuously ignore you, but you keep following me !
Well that is a sign of a low form of existence !
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