Features
IS RANJAN RAMANAYAKE DISQUALIFIED?
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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There’s an ill more dangerous and pervasive than the Coronavirus that’s currently sweeping Sri Lanka. That is the fear to express one’s convictions. Across the public sector of the country in particular many persons holding high office are stringently regulating and controlling the voices of their consciences and this bodes ill for all and the country.
The corrupting impact of fear was discussed in this column a couple of weeks ago when dealing with the military coup in Myanmar. It stands to the enduring credit of ousted Myanmarese Head of Government Aung San Suu Kyi that she, perhaps for the first time in the history of modern political thought, singled out fear, and not power, as the principal cause of corruption within the individual; powerful or otherwise.
To be sure, power corrupts but the corrupting impact of fear is graver and more devastating. For instance, the fear in a person holding ministerial office or in a senior public sector official, that he would lose position and power as a result of speaking out his convictions and sincere beliefs on matters of the first importance, would lead to a country’s ills going unaddressed and uncorrected.
Besides, the individual concerned would be devaluing himself in the eyes of all irrevocably and revealing himself to be a person who would be willing to compromise his moral integrity for petty worldly gain or a ‘mess of pottage’. This happens all the while in Lankan public life. Some of those who have wielded and are wielding immense power in Sri Lanka leave very much to be desired from these standards.
It could be said that fear has prevented Sri Lanka from growing in every vital respect over the decades and has earned for itself the notoriety of being a directionless country.
All these ills and more are contained in the current controversy in Sri Lanka over the disposal of the bodies of Covid victims, for example. The Sri Lankan polity has no choice but to abide by scientific advice on this question. Since authorities of the standing of even the WHO have declared that the burial of the bodies of those dying of Covid could not prove to be injurious to the wider public, the Sri Lankan health authorities could go ahead and sanction the burying of the bodies concerned. What’s preventing the local authorities from taking this course since they claim to be on the side of science? Who or what are they fearing? This is the issue that’s crying out to be probed and answered.
Considering the need for absolute truthfulness and honesty on the part of all relevant persons and quarters in matters such as these, the latter have no choice but to resign from their positions if they are prevented from following the dictates of their consciences. If they are firmly convinced that burials could bring no harm, they are obliged to take up the position that burials should be allowed.
If any ‘higher authority’ is preventing them from allowing burials, our ministers and officials are conscience-bound to renounce their positions in protest, rather than behave compromisingly and engage in ‘double think’ and ‘double talk’. By adopting the latter course they are helping none but keeping the country in a state of chronic uncertainty, which is a handy recipe for social instabiliy and division.
In the Sri Lankan context, the failure on the part of the quarters that matter to follow scientific advice on the burials question could result in the aggravation of Islamophobia, or hatred of the practitioners of Islam, in the country. Sri Lanka could do without this latter phobia and hatred on account of its implications for national stability and development. The 30 year war against separatist forces was all about the prevention by military means of ‘nation-breaking’. The disastrous results for Sri Lanka from this war are continuing to weigh it down and are part of the international offensive against Sri Lanka in the UNHCR.
However, Islamophobia is an almost world wide phenomenon. It was greatly strengthened during Donald Trump’s presidential tenure in the US. While in office Trump resorted to the divisive ruling strategy of quite a few populist authoritarian rulers of the South. Essentially, the manoeuvre is to divide and rule by pandering to the racial prejudices of majority communities.
It has happened continually in Sri Lanka. In the initial post-independence years and for several decades after, it was a case of some populist politicians of the South whipping-up anti-Tamil sentiments. Some Tamil politicians did likewise in respect of the majority community. No doubt, both such quarters have done Sri Lanka immeasurable harm. By failing to follow scientific advice on the burial question and by not doing what is right, Sri Lanka’s current authorities are opening themselves to the charge that they are pandering to religious extremists among the majority community.
The murderous, destructive course of action adopted by some extremist sections among Muslim communities world wide, including of course Sri Lanka, has not earned the condemnation it deserves from moderate Muslims who make-up the preponderant majority in the Muslim community. It is up to moderate opinion in the latter collectivity to come out more strongly and persuasively against religious extremists in their midst. It will prove to have a cementing and unifying impact among communities.
It is not sufficiently appreciated by governments in the global South in particular that by voicing for religious and racial unity and by working consistently towards it, they would be strengthening democratic development, which is an essential condition for a country’s growth in all senses.
A ‘divided house’ is doomed to fall; this is the lesson of history. ‘National security’ cannot be had without human security and peaceful living among communities is central to the latter. There cannot be any ‘double talk’ or ‘politically correct’ opinions on this question. Truth and falsehood are the only valid categories of thought and speech.
Those in authority everywhere claiming to be democratic need to adopt a scientific outlook on this issue as well. Studies conducted on plural societies in South Asia, for example, reveal that the promotion of friendly, cordial ties among communities invariably brings about healing among estranged groups and produces social peace. This is the truth that is waiting to be acted upon.
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By Sanjeewa Jayaweera
It was on 3rd January 1972 that our family arrived in Karachi from Moscow. Our departure from Moscow had been delayed for a few weeks due to the military confrontation between Pakistan and India. It ended on 16th December 1971. After that, international flights were not permitted for some time.
The contrast between Moscow and Karachi was unbelievable. First and foremost, Moscow’s temperature was near minus 40 degrees centigrade, while in Karachi, it was sunny and a warm 28 degrees centigrade. However, what struck us most was the extreme warmth with which the airport authorities greeted our family. As my father was a diplomat, we were quickly ushered to the airport’s VIP Lounge. We were in transit on our way to Rawalpindi, the airport serving the capital of Islamabad.
We quickly realized that the word “we are from Sri Lanka” opened all doors just as saying “open sesame” gained entry to Aladdin’s cave! The broad smile, extreme courtesy, and genuine warmth we received from the Pakistani people were unbelievable.
This was all to do with Mrs Sirima Bandaranaike’s decision to allow Pakistani aircraft to land in Colombo to refuel on the way to Dhaka in East Pakistan during the military confrontation between Pakistan and India. It was a brave decision by Mrs Bandaranaike (Mrs B), and the successive governments and Sri Lanka people are still enjoying the fruits of it. Pakistan has been a steadfast and loyal supporter of our country. They have come to our assistance time and again in times of great need when many have turned their back on us. They have indeed been an “all-weather” friend of our country.
Getting back to 1972, I was an early beneficiary of Pakistani people’s love for Sri Lankans. I failed the entrance exam to gain entry to the only English medium school in Islamabad! However, when I met the Principal, along with my father, he said, “Sanjeewa, although you failed the entrance exam, I will this time make an exception as Sri Lankans are our dear friends.” After that, the joke around the family dinner table was that I owed my education in Pakistan to Mrs B!
At school, my brother and I were extended a warm welcome and always greeted “our good friends from Sri Lanka.” I felt when playing cricket for our college; our runs were cheered more loudly than of others.
One particular incident that I remember well was when the Embassy received a telex from the Foreign inistry. It requested that our High Commissioner seek an immediate meeting with the Prime Minister of Pakistan, Mr Zulifikar Ali Bhutto (ZB), and convey a message from Mrs B. The message requested that an urgent shipment of rice be dispatched to Sri Lanka as there would be an imminent rice shortage. As the Ambassador was not in the station, the responsibility devolved on my father.
It usually takes about a week or more to get an audience with the Prime Minister (PM) of a foreign country due to their busy schedule. However, given the urgency, my father spoke to the Foreign Ministry’s Permanent Sectary, who fortunately was our neighbour and sought an urgent appointment. My father received a call from the PM’s secretary around 10 P.M asking him to come over to the PM’s residence. My father met ZB around midnight. ZB was about to retire to bed and, as such, was in his pyjamas and gown enjoying a cigar! He had greeted my father and had asked, “Mr Jayaweera, what can we do for great friend Madam Bandaranaike?. My father conveyed the message from Colombo and quietly mentioned that there would be riots in the country if there is no rice!
ZB had immediately got the Food Commissioner of Pakistan on the line and said, “I want a shipload of rice to be in Colombo within the next 72 hours!” The Food Commissioner reverted within a few minutes, saying that nothing was available and the last export shipment had left the port only a few hours ago to another country. ZB had instructed to turn the ship around and send it to Colombo. This despite protests from the Food Commissioner about terms and conditions of the Letter of Credit prohibiting non-delivery. Sri Lanka got its delivery of rice!
The next was the visit of Mrs B to Pakistan. On arrival in Rawalpindi airport, she was given a hero’s welcome, which Pakistan had previously only offered to President Gaddafi of Libya, who financially backed Pakistan with his oil money. That day, I missed school and accompanied my parents to the airport. On our way, we witnessed thousands of people had gathered by the roadside to welcome Mrs B.
When we walked to the airport’s tarmac, thousands of people were standing in temporary stands waving Sri Lanka and Pakistan flags and chanting “Sri Lanka Pakistan Zindabad.” The noise emanating from the crowd was as loud and passionate as the cheering that the Pakistani cricket team received during a test match. It was electric!
I believe she was only the second head of state given the privilege of addressing both assemblies of Parliament. The other being Gaddafi. There was genuine affection from Mrs B amongst the people of Pakistan.
I always remember the indefatigable efforts of Mr Abdul Haffez Kardar, a cabinet minister and the President of the Pakistan Cricket Board. From around 1973 onwards, he passionately championed Sri Lanka’s cause to be admitted as a full member of the International Cricket Council (ICC) and granted test status. Every year, he would propose at the ICC’s annual meeting, but England and Australia’s veto kept us out until 1981.
I always felt that our Cricket Board made a mistake by not inviting Pakistan to play our inaugural test match. We should have appreciated Mr Kardar and Pakistan’s efforts. In 1974 the Pakistan board invited our team for a tour involving three test matches and a few first-class games. Most of those who played in our first test match was part of that tour, and no doubt gained significant exposure playing against a highly talented Pakistani team.
Several Pakistani greats were part of the Pakistan and India team that played a match soon after the Central Bank bomb in Colombo to prove that it was safe to play cricket in Colombo. It was a magnificent gesture by both Pakistan and India. Our greatest cricket triumph was in Pakistan when we won the World Cup in 1996. I am sure the players and those who watched the match on TV will remember the passionate support our team received that night from the Pakistani crowd. It was like playing at home!
I also recall reading about how the Pakistani government air freighted several Multi Barrell artillery guns and ammunition to Sri Lanka when the A rmy camp in Jaffna was under severe threat from the LTTE. This was even more important than the shipload of rice that ZB sent. This was crucial as most other countries refused to sell arms to our country during the war.
Time and again, Pakistan has steadfastly supported our country’s cause at the UNHCR. No doubt this year, too, their diplomats will work tirelessly to assist our country.
We extend a warm welcome to Mr Imran Khan, the Prime Minister of Pakistan. He is a truly inspirational individual who was undoubtedly an excellent cricketer. Since retirement from cricket, he has decided to get involved in politics, and after several years of patiently building up his support base, he won the last parliamentary elections. I hope that just as much as he galvanized Sri Lankan cricketers, his political journey would act as a catalyst for people like Kumar Sangakkara and Mahela Jayawardene to get involved in politics. Cricket has been called a “gentleman’s game.” Whilst politics is far from it!.
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Believe me, seeing certain videos, on social media, depicting action, on the dance floor, at some of these entertainment venues, got me wondering whether this Coronavirus pandemic is REAL!
To those having a good time, at these particular venues, and, I guess, the management, as well, what the world is experiencing now doesn’t seem to be their concerned.
Obviously, such irresponsible behaviour could create more problems for those who are battling to halt the spread of Covid-19, and the new viriant of Covid, in our part of the world.
The videos, on display, on social media, show certain venues, packed to capacity – with hardly anyone wearing a mask, and social distancing…only a dream..
How can one think of social distancing while gyrating, on a dance floor, that is over crowded!
If this trend continues, it wouldn’t be a surprise if Coronavirus makes its presence felt…at such venues.
And, then, what happens to the entertainment scene, and those involved in this field, especially the musicians? No work, whatsoever!
Lots of countries have closed nightclubs, and venues, where people gather, in order to curtail the spread of this deadly virus that has already claimed the lives of thousands.
Thailand did it and the country is still having lots of restrictions, where entertainment is concerned, and that is probably the reason why Thailand has been able to control the spread of the Coronavirus.
With a population of over 69 million, they have had (so far), a little over 25,000 cases, and 83 deaths, while we, with a population of around 21 million, have over 80,000 cases, and more than 450 deaths.
I’m not saying we should do away with entertainment – totally – but we need to follow a format, connected with the ‘new normal,’ where masks and social distancing are mandatory requirements at these venues. And, dancing, I believe, should be banned, at least temporarily, as one can’t maintain the required social distance, while on the dance floor, especially after drinks.
Police spokesman DIG Ajith Rohana keeps emphasising, on TV, radio, and in the newspapers, the need to adhere to the health regulations, now in force, and that those who fail to do so would be penalised.
He has also stated that plainclothes officers would move around to apprehend such offenders.
Perhaps, he should instruct his officers to pay surprise visits to some of these entertainment venues.
He would certainly have more than a bus load of offenders to be whisked off for PCR/Rapid Antigen tests!
I need to quote what Dr. H.T. Wickremasinghe said in his article, published in The Island of Tuesday, February 16th, 2021:
“…let me conclude, while emphasising the need to continue our general public health measures, such as wearing masks, social distancing, and avoiding crowded gatherings, to reduce the risk of contact with an infected person.
“There is no science to beat common sense.”
But…do some of our folks have this thing called COMMON SENSE!
