16 May, 2022

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What Is The Greater Wrong – Contempt Of Court Or Illegal Detention?

By Basil Fernando

Basil Fernando

In two occasions, the United Nations Human Rights Committee (UNHRC) held in two separate cases decided by the Sri Lankan Supreme Court related to contempt of court that the punishment imposed by the Court amounted to disproportionate punishment and that such punishment amounted to illegal detention. The UNHRC held that on both occasions that the petitioners right to be free from illegal detention guaranteed under Article 9 of the International Covenant on Civil and Political Rights (ICCPR) has been violated. It further held that the State is liable for the violation of this right by the Court and that the petitioners are entitled to compensation.

Findings of the two cases are as follows:

 On Michael Anthony Emmanuel Fernando case –

“…….the only disruption indicated by the State Party is the repetitious filing of motions by the author, for which an imposition of financial penalties would have evidently been sufficient, and one instance of ‘raising his voice’ in the presence of the Court and refusing thereafter to apologize. The penalty imposed was a one year term of ‘rigourous 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 forbids any ‘arbitrary’ deprivation of liberty. The imposition of a draconian penalty without adequate explanation and without independent procedural safeguards falls within that prohibition. The fact that an act constituting a violation of Article 9, Paragraph 1, is committed by the judicial branch of Government cannot prevent the engagement of the responsibility of the State Party as a whole. The Committee concludes that the author’s detention was arbitrary, in violation of Article 9, Paragraph 1” (CPR/C/83/D/1189/2003. (Jurisprudence)

D.M. Dissanayake v. Sri Lanka, Comm. 1373/2005, U.N. Doc. A/63/40, Vol. II, at 109 (HRC 2008)

“In this jurisprudence, the Committee also observed that the imposition of a draconian penalty without adequate explanation and without independent procedural safeguards falls within the prohibition of the “arbitrary” deprivation of liberty, and within the meaning of Article 9, Paragraph 1, of the Covenant. The fact that an act constituting a violation of Article 9, Paragraph 1, is committed by the judicial branch of Government cannot prevent the engagement of the responsibility of the State Party as a whole.”

[FN8] Fernando v. Sri Lanka, supra

8.3 In the current case, the author was sentenced to two years rigorous imprisonment for having stated at a public meeting that he would not accept any “disgraceful decision” of the Supreme Court, in relation to a pending opinion on the exercise of defence powers between the President and the Minister of Defence. As argued by the State Party, and confirmed on a review of the judgement itself, it would appear that the word “disgraceful” was considered by the Court as a “mild” translation of the word uttered. The State Party refers to the Supreme Court’s argument that the sentence was “deterrent” in nature, given the fact that the author had previously been charged with contempt but had not been convicted because of his apology. It would thus appear that the severity of the author’s sentence was based on two contempt charges, of one of which he had not been convicted. In addition, the Committee notes that the State Party has provided no explanation of why summary proceedings were necessary in this case, particularly in light of the fact that the incident leading to the charge had not been made in the “face of the Court”. The Committee finds that neither the Court nor the State Party has provided any reasoned explanation as to why such a severe and summary penalty was warranted, in the exercise of the Court’s power to maintain orderly proceedings,“

The Sri Lankan Constitution has enshrined that the freedom from illegal detention is a fundamental human right.

The Supreme Court of Sri Lanka has a duty of guaranteeing the protection of this fundamental right.

No court is entitled to act in violation of the fundamental rights of the people.

Thus, this contradiction between the State duty to prevent illegal detention and the Court’s jurisdiction to deal with contempt of court needs to be removed by restating that the Court’s discretion does not extend to the granting of disproportionate punishments violative of the Constitutional right to freedom against illegal detention or any other such fundamental right.

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Latest comments

  • 2
    0

    ‘Contempt of Litigants’ is equally bad as Contempt of Court or Contempt of Justice . Has any court ever taken to task those who were responsible for Contempt of Litigants by delaying justice?. If not why not? I would KINDLY request all readers of Colombo Telegraph to read the article which appeared on 22/1/20 under the ‘HEADING CONTEMPT OF LITIGANTS’.

  • 12
    0

    The fact is that two of the biggest injustices that have occurred in recent times have been done by our so called Courts.

    Sending Ranjan Ramanayke to jail for so long for something he said was a shocking injustice.( courts are corrupt) Leave alone judges, even average reasonable men will not act like that. All I can see is judges who take themselves too seriously and are full of ego. But in truth these men who are very mediocre , trying to build up personalities for themselves by becoming high powered judicial people.

    The other injustice which is shocking is that case of lawyer Hisbulla kept in remand for two long years and finally released with no case against him . Was he kept for two years while the police looked for evidence ? What was the evidence found in these two years ? What was the available evidence at the time of his arrest ?

    In other countries the courts act as the guardian of the people and will not allow injustices to happen. In this country the courts are under the Police and the politicians.

    Our legal profession are only mimicking a role they are not suitable to play, but in reality they are clowns making money clowning.

    • 0
      1

      Deepthi
      Do you know what is the punishment stipulated in the existing law for contempt of court? You can help the readers.

      Soma

  • 1
    1

    IF (yes, IF) the law stipulates that ANY (yes, ANY) theft not withstanding the motive or intention is punishable by a MINIMUM of three months in jail
    and
    a judge sentences a woman who stole a loaf of bread to feed her starving children to three months in jail
    who/what is at fault?
    The judge or the law?
    .
    Is a judge who is campaigning out of courts for abolishing capital punishment continues to impose the same in the courts on murder cases proven beyond any doubt is he/she a hypocrite?
    Absolutely NO. They are the bedrock of a law based society.
    .
    After Ranjan’s case I expected these imbeciles on the top rung in the legal community to rush into action and propose unambigous laws and punishment levels in regard to contempt of court rather than wasting time writing articles to Colombo Telegraph.
    .
    I propose a MAXIMUM of 4 weeks of community service for contempt of court to be adopted into the law.

    Soma

  • 1
    0

    What is the position when a person is charged with “Contempt of Court” and that person claims he can prove his Contempt for the Court is justified? Will he be given an opportunity to present his arguments to court on that point?

  • 4
    0

    I do not believe that the general population of Sri Lanka are under any illusion that the justice or law enforcement systems will deliver fair and just decisions to ordinary people. There are ample examples that show the opposite, with nepotism, cronyism and loyalties to high powered politicians being the order of the day.

  • 3
    0

    Is not the abuse of power to release one found guilty of serious contempt of court and reward him with position a more serious offence than both?

  • 2
    0

    In Ranjan Ramanayakes case he had Contempt FOR Court. But the Court deemed that it is Contempt OF COURT.

    What Ranjan Ramanayake stated was also the widely held belief of the general populace…………………………….

    • 0
      1

      Plato
      Do you know what is the punishment stipulated in the existing law for contempt of court?
      You can help the readers.

      Soma

      • 0
        2

        Plato
        Blame the law NOT the judges.
        .
        Job of the judges is to interpret the EXISTING law – blind folded.
        They cannot go by their moral compulsions or by their personal opinion of how the law should be. If that were the case written laws would be unnecessary.
        Neither can they go by what they hear over grapevine – they are supposed to evaluate evidence presented before the courts and arguments by both sides.
        People like Basil Fernando and Sumathithan should no better.
        (They would have argued for the opposite for a higher fee anyway.)
        Out of courts their moral duty is to liase with the legislature to amend unreasonable or outdated laws.
        They certainly must have heard the saying ” Worst tyranny is the wrong law’
        Again, blame the law NOT the judges.
        .
        If you ask me, the maximum sentence for contempt of court should be four weeks of community service. And it must be incorporated into the law – relieve the judges of the burden.
        Likewise, dealth penalty should be abolished is the opinion of many including me.
        ‘LAW’ MUST BE AMMENDED ACCORDINGLY. IF A JUDGE IMPOSES DEATH PENALTY FOR MURDER TODAY IT IS NOT ‘DISPROPORTIONATE’ IF THE PROOF IS WITHOUT REASONABLE DOUBT.

        Soma

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