5 March, 2021

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Is Ranjan Ramanayake Disqualified? 

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

According to a newspaper report, the Attorney-General has advised the Secretary-General of Parliament that Ranjan Ramanayake’s seat in Parliament has fallen vacant following his “conviction and sentence” for contempt of court. According to the Attorney-General, Ramanayake was “convicted” by the Supreme Court “of the offence of contempt of court punishable under Article 105(3) of the Constitution and sentenced to a term of four years rigorous imprisonment” and is therefore not qualified to remain a Member of Parliament under Article 89(d) of the Constitution. In my view, the Attorney-General has misdirected himself on the law.

Article 105(3) states that

The Supreme Court and the Court of Appeal 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.

Article 89(d) states that:

No person shall be qualified to be an elector if he is subject to the following disqualification –

(d) if he is serving a sentence of imprisonment for a term not less than six months imposed after conviction by any court for an offence punishable with imprisonment for a term not less than two years or is under sentence of death.

Article 89(d), therefore, contains four elements, all of which should be satisfied before a person is disqualified from being an elector, and therefore from being elected as a Member of Parliament or from sitting and voting in Parliament. These are:

a) an offence,

b) punishable with imprisonment for a term not less than two years,

c) conviction by a court, and

d) be serving a sentence of imprisonment for a term not less than six months.

An offence

Article 105(3) does not create the offence of contempt; nor does it refer to contempt as an “offence”. It does not define the term “contempt”; nor does it set out what acts or omissions constitute contempt. What it does is state that the Supreme Court has “the power to punish for contempt of itself, whether committed in the court itself or elsewhere”. In Article 105(3), “contempt” is used in a generic sense. As Lord Diplock observed in Attorney-General v. Times Newspapers (1974), “Contempt of Court is a generic term descriptive of conduct in relation to particular proceedings in a court of law”.

On the other hand, Article 111C of the Constitution makes it an offence for any person to “interfere or attempt to interfere with the exercise or performance of the judicial powers or functions of any judge”. That is an offence punishable by the High Court, on conviction after trial, with imprisonment which may extend to one year or with fine, and disqualification from being an elector for a period not exceeding seven years. Similarly, the Judicature Act has conferred on every original court a special jurisdiction to punish with the prescribed penalties every “offence” of contempt of court committed in the presence of the court itself, and all “offences” which are committed in the course of any act or proceeding in such courts “and which are declared by any law for the time being in force to be punishable as contempt of court”. These “offences”, some of which are defined in the Civil and Criminal Procedure Codes, include the failure to answer interrogatories or to produce a document, or refuse to give evidence. Ramanayake was not charged under either of these laws.

Punishable with imprisonment for a term not less than two years

For Article 89(d) to be applicable, there has to be “an offence” created by law, which is punishable with imprisonment for a term not less than two years. Article 105(3) does not create any offence that is punishable “with imprisonment for a term not less than two years”. In fact, Article 105(3) does not specify any term of imprisonment or the quantum of a fine. 

Conviction by a court

For a person to be “convicted”, there has to be an “offence” for which he is “charged”. Since Article 105(3) does not create any offence, no “charge” or “indictment” was served on Ramanayake. Instead, a “Rule” was read to the “Respondent” by the Registrar at the commencement of the proceedings, and in the penultimate paragraph of the judgment the Court states that “We affirm the Rule”. In the circumstances, the statement in the final paragraph of the judgment that “we convict him for the offence of contempt punishable under Article 105(3)” appears to have been made per incuriam.

Serving a sentence of imprisonment for a term not less than six months

The sentence imposed on Ramanayake was four years rigorous imprisonment. That sentence satisfies the requirement of Article 89(d), but only if the other requirements of that Article described above have also been met. Since they have not, the sentence imposed on him is irrelevant in determining whether or not Article 89(d) is applicable to Ramanayake. 

The International Covenant on Civil and Political Rights (ICCPR)

The Government of Sri Lanka has ratified the ICCPR which is the principal multilateral global treaty on human rights. Accordingly, Sri Lanka is bound by the provisions of that treaty. Sri Lanka has also ratified the Optional Protocol to the ICCPR. By so doing, Sri Lanka has recognized the competence of the Human Rights Committee, consisting of 18 distinguished international jurists, to receive and consider a “communication” from any citizen who claims to be a victim of a violation of a right defined in the ICCPR. Did the Attorney-General draw the attention of the Court to the decision of the Human Rights Committee in the 2008 case of S.B. Dissanayake v. Sri Lanka which concerned sentencing in contempt matters?

S.B. Dissanayake v. Sri Lanka

In 2003, the Supreme Court found S.B. Dissanayake, MP and Minister, guilty of contempt of court for having stated at a public meeting that he “would not accept any shameful decision [‘balu thinduwak’]the Court gives”. He was referring to an advisory opinion which President Kumaratunge had sought from the Supreme Court on a constitutional issue. He was sentenced to two years rigorous imprisonment by Chief Justice Sarath Silva. He availed himself of the right to submit a communication under the ICCPR. 

In that case, in which I represented Dissanayake, the Human Rights Committee held that the State was responsible for a violation of the ICCPR even if committed by the judiciary. Accordingly, it described the sentence of two year’s rigorous imprisonment for contempt of court as a “draconian penalty” which constituted “arbitrary deprivation of liberty”, prohibited by Article 9(1) of the ICCPR (The right to liberty). It held that the sentence also violated Article 19(1) of the ICCPR as being disproportionate to any legitimate aim under that Article (Right to freedom of expression). 

On the application of Article 89(d) of the Constitution, the Human Rights Committee observed that “if a conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and sentence”. Accordingly, if Dissanayake was denied his right to be elected or to vote for a period of seven years, Sri Lanka would violate Article 25(b) of the ICCPR (The right to take part in the conduct of public affairs). 

The Sri Lanka Government was ordered to pay compensation to Dissanayake, and restore his right to vote and to be elected. The Government was also requested to make such changes to the law and practice relating to contempt of court, so as to avoid similar violations of the ICCPR in the future. Over a decade later, a law on contempt of court is yet to be enacted by Parliament.

The Law on Contempt of Court

In 1983, in Hewamanne v. Manik de Silva, five Judges of the Supreme Court examined very exhaustively the law on contempt of court. They concluded that the substantive law applicable in Sri Lanka was the English common law of contempt. In England, at that time, while the law relating to “scandalizing the court” was still in force, it had not been applied since 1931. Mr Justice Ranasinghe observed thus:

The modern approach in regard to this category of contempt of court seems to be heavily in favour of the courts being content to leave to public opinion attacks or comments derogatory or scandalous to them and to rely on their conduct itself to be their own vindication.

This as a view shared by Lord Salmon who, in 1970, observed that to claim that “scandalizing the court” is a form of contempt of court was both unfortunate and misleading.

“This archaic description of these proceedings as ‘contempt of court’ suggests that they are designed to buttress the dignity of the judges and to protect them from insult. Nothing could be further from the truth. No such protection is needed. The sole purpose of proceedings for contempt is to give our courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented.”

The English law has since been amended. The Crime and Courts Act of 2013 abolished “scandalizing the court” as a form of contempt. What the House of Lords once described as “a supposed affront to the dignity of the court” is no longer punishable as contempt of court. In the Constitutional Court of South Africa, Justice Sachs observed that the words “scandalizing” and “disrepute” belonged to an archaic vocabulary:

“They evoke another age with other values. . . The problem is not simply that the nomenclature is quaint but that it can be misleading. The heart of the offence lies not in the outrage to the sensibilities of the judicial officers concerned but the impact that the utterance is likely to have on the administration of justice. . . Indeed, bruising criticism could in many circumstances lead to the improvement in the administration of justice. Conversely, the chilling effect of fear of prosecution for criticizing the courts might be conducive to its deterioration. . . Criticism, however robust and painful, is as necessary as ever.”

Under English law, contempt committed “in the court itself” includes such acts as disobeying or ignoring a court order; shouting in court; or refusing to answer a question put to a witness by the court. Contempt committed “elsewhere” includes publicly commenting on a pending case by declaring on social media that a person is guilty or innocent; referring to a person’s previous convictions; naming someone the judge has allowed to be anonymous; naming victims, witnesses and offenders under the age of 18; naming sex crime victims; or sharing any evidence or facts about a case that the judge has said cannot be made public. 

Conclusion

Since the Attorney-General appeared before the Supreme Court presumably in the capacity of amicus curiae, was it not his duty to have brought to the attention of the Court, the relevant decision of the Human Rights Committee, and also the recent changes in the English law of contempt that continue to be applicable to Sri Lanka in the absence of a substantive law of our own? Was the Attorney-General unaware that “scandalizing the court” was no longer an offence under English law?  Meanwhile, is it the Attorney-General who decides whether a duly elected Member of Parliament is disqualified from sitting and voting in Parliament? 

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Latest comments

  • 12
    0

    Rule of law has been failing under several governments before, but reached its summit with present rulers violating rule of law with gay abandon.

    I am not surprised at all of Ranjan Ramanayake’s fate.

    Instead of sending a white van for him, the ruler has used the corrupt legal system.

    Sinhalese people wanted a Hitler at the helm, and the whole country is reaping the harvest from the racist seeds they sowed. Appe Aanduwa at its peak!

    What rule of law existed for thousands of Tamil victims of periodic Sinhalese pogroms against them, losing their lives, properties and subjected to sexual abuses?

    • 4
      0

      Question: Why is that prevailing law and order repeatedly fail in serving the justice in our country. Ironically, elections are held to get them elected again and again?
      §§
      Answer: Each time after getting elected to parliament, regardless of party, they all fail to pass even tiny amendment to prevailing laws in the country. Laws that prevail in legal systems are believed tob e not sufficient to punish the real criminals. This is being repeated by LAWYERs, JUDGES and various experts, but nothings seem to work for any step forward. As former president (aka Polonaruwa donkey) repeated it, cultures forces are much stronger than any other forces in our country. If a cacener would be the issue, we need to treat the patients with proper medicine. Just ignoring having done the due, but dreaming of a better future for youth, would be like PIGS might fly oneday.
      §§
      Question: What is the definition of law makers ?
      Answer: Law makers are the ones being elected by voters to represent their thoughts and minds in the parliamentary debates. During the last election, there were reports that revealed there are a predominant portion of MPs with zero active roles in debate performances. Surprisingly, even if they didnot fulfil their roles, they were too enjoyed the perks offered tot hem as a MP.

      • 4
        0

        Answer:
        Either they should do their job to the best, or leave….. you guys need to discuss this on and on..

    • 7
      0

      Legally he is disqualified because Kangaroo court of Pariah state has sentenced him to prison. Morally he is not, because he spoke the truth and exposed the crooked people.

  • 11
    1

    Thank you for addressing the issue of the draconian sentence imposed on Ranjan Ramanayake. If the Parliamentarians are not prepared to amend the law on Contempt of Court, this issue needs to be taken up at an international level.

    • 1
      5

      The Parliament must immediately amend the law on contempt of court.
      Any punishment must be lenient like maximum of 4 weeks of community service.
      .
      Judges are expected to act on the basis of the EXISTING law. Hence judges cannot be blamed. They cannot be guided by their own moral compulsions or their opinion of how the law should be.
      .
      As someone said worst tyranny is the wrong law.
      .
      In case of a conflict does the English law supersedes the SL law.?

      Soma

  • 12
    1

    No surprise. This AG (as many others before him who were Mary’s lambs to get a Supreme Court seat) is like a stick in mud or a ship adjusting its sails to the wind to blow like the curls on his head.

  • 12
    0

    Per incuriam needs to be explained in lay terms. It is common public knowledge that Sri Lanka reeks of corruption at every conceivable level, with positions however haughty and pompous also similarly corrupt. Institutions have endemic corruption that have deteriorated moral values and ethics to abysmally low levels. Merit is trumped by cronyism and nepotism with sycophants salivating for crumbs from the politically powerful. It is in that environment that a brave and noble gentleman sought to speak truths to power. I believe that the public must agitate with one voice for the commuting of the sentence, and heed well, the following quote from South Africa’s Justice Sachs:

    ” Indeed, bruising criticism could in many circumstances lead to the improvement in the administration of justice. Conversely, the chilling effect of fear of prosecution for criticizing the courts might be conducive to its deterioration. . . Criticism, however robust and painful, is as necessary as ever.”

    • 0
      9

      Dr.Lasantha Pethiyagoda
      .
      Ranjan Ramanayaka is NOT a noble gentleman. The way he betrayed the trust of women who confided him is a shame on the entire male species.
      I felt immensely sorry for these women and even for the judges and CID officers who got involved with him as it is obvious that he initiates the call and throws the bait gently for them to swallow so that he could record the conversation. If the whole episode did not explode as it did he probably could use these recordings to blackmail them at his convenience and extract all kinds of unsavoury favours.
      .
      As a legislator in the ruling government he should not be speaking to judges and law enforcement authorities out of parliament.
      .
      However this horrendous punishment for contempt of court is altogether a different matter.
      .
      I am wondering if there is any way of getting him out of this punishment and prosecute him for his conversations with judges and CID officers.

      Soma

  • 7
    1

    The Attorney-General is as corrupt as they come. He goes out of his way to make things more difficult for critics of the government while facilitating to overturn the convictions of murderers and other criminals and turn them loose amidst society as free men. Actually, if one looks deeply enough, he is just being a puppet. He will lose his job if he does not do as he is instructed from above.

  • 9
    0

    Thank you Mr Nihal Jayawickrema for explaining so clearly for us to undestand about what is going on.

    When I was young my father used to tell me that you cannot command respect you have to win it.

    This is an universal truth it applies to all including the Exucutive, Legislature and the Judiciary.

  • 8
    1

    That is a legal question, but for ordinary people he is not only a Celluloid hero ,but a hero in real life as well!

  • 11
    0

    “Meanwhile, is it the Attorney-General who decides whether a duly elected Member of Parliament is disqualified from sitting and voting in Parliament?”
    It is not the AG who decided this decision. The decision was made by the supreme powers of the Country and AG is just following the orders.

    All this justifies the call of UNHRC human rights commissioner.

  • 5
    0

    In the Sinhala mindset is there place to visit called rule of law? Conversely do rules exist that can be applied universally?

  • 9
    0

    New York city being American largest city has an advanced legal system . There is 1) contempt of court and 2) criminal contempt. Number one revolves around contempt towards court decisions. For example if someone is told to appear in court and doesn’t show up. This is the most common one. 2) revolves around conspiracy changes pertaining to court officials. For example plotting to kill to a judge or bribe a court official.
    Dissanayake and ramanayake are both protected under freedom of speech under the SL law. It’s not crime to state opinion in public. Only in places like the Soviet union, North Korea or Iran will someone get this type of treatment.

    • 0
      0

      westham
      Which law did Ranjan violate according to the PROSECUTION?
      Before we blame the judges we must analyse the arguments presented by Prosecution and Defence.
      Appreciate if you can help the readers in this aspect.

      Soma

      • 1
        0

        Soma.
        As far as I can understand he didn’t break any law. All he said was that most of the judges are corrupt. He is protected under the freedom of speech make such a statement. An average defense attorney could got him off easily. Maybe ramanauake didn’t have one or the judges were given instructions from the top to convict him . The 4 year sentence indicates the latter. A law is written to prevent a citizen from breaking it. In this case he didn’t break any law.

        • 0
          0

          westham
          It seems you and me both are unaware of court proceedings.
          We shouldn’t have wasted CT space.

          Soma

  • 6
    1

    If Ranajan is disqualified then every MP who has gone to the prison should be disqualified. When the President pardons he is not pardoning the crime, he cannot pardon a crime already committed, its a done deal. But he can pardon a person and release the person from the prison. The Pardoning applies only to the prison term and not for the crime.

    Further the prison term of 4 years given to Ranjan is not an equitable punishment as there are precedence set in such cases where the fine has been minimal. Hence this decision by the courts, that too the Supreme Court is a BIAS POLITICAL VICTIMIZATION OF A CORRUPT JUDICIARY.

    Hence the decision of the Supreme Court is “ULTRA VIRES”!

  • 7
    0

    Lankan low and odor
    Remember convict was released to take oath

  • 0
    0

    westham
    Which law did Ranjan violate according to the PROSECUTION?
    Before we blame the judges we must analyse the arguments presented by Prosecution and Defence.
    Appreciate if you can help the readers in this aspect.

    Soma

  • 0
    0

    “In 2003, the Supreme Court found S.B. Dissanayake, MP and Minister, guilty of contempt of court for having stated at a public meeting that he “would not accept any shameful decision [‘balu thinduwak’]the Court gives”. He was referring to an advisory opinion which President Kumaratunge had sought from the Supreme Court on a constitutional issue. He was sentenced to two years rigorous imprisonment by Chief Justice Sarath Silva.”
    .
    Nihal J is raising a fundamental issue critically important for all citizens.
    .
    Are not all citizens bound to abide by the judgements of the courts which the courts arrive at after hearing arguments of both Prosecution and Defence.?
    .
    Would a reader knowledgeable in Constitutional matters please help?

    Soma

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