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?