Columns

Rienzie Arsecularatne: Ringing problem

When a president’s counsel’s cell phone reputedly began to repeatedly sound his favourite ring tone in the Galle High Court on Monday, it was enough to drive the legal eagle up the gum tree to answer a call of contempt in court.Sitting judge K.B.K. Hirimburegama was not amused to have the decorum of his court destroyed by the phone’s incessant blare that he charged President’s Counsel Rienzie Arsecularatne with contempt of court. Neither was the former solicitor general willing to take a missed call on the issue. He refused to ring off and pleaded not guilty. The High Court judge then fixed trial for 22nd of January.

The titter that would have run through the old colonial styled court would have remained confined to the Galle Fort instead of erupting into an argle-bargle had it not been for a group of High Court lawyers in Colombo raising their briefs to rush to the defence of the ringing accused and vowing to leave no stone unturned to have the charge sheet pulverized.

Descending from a flight of stairs on Thursday, a legal brigade from the Hultsdorf High Court Lawyers Association (HCLA) stepped forth to face the jury of television cameras and to announce the result of their deliberations, in the manner a judge would deliver his judgement in open court.

Secretary of the HCLA, Mohan Sellapperuma delivering the opinion of the association’s members first said the association had unanimously condemned the Galle High Court judge’s decision to charge President’s Counsel Rienzie Arsecularatne with contempt; and later pronounced that the ‘involuntary ringing of a cell phone could not be held as contempt of court.

The sub judice rule holds that no one should interfere with legal proceedings while they are pending. Thus to declare the accused to be guilty of the crime charged before the trial is over clearly amounts to contempt of court. But what happens when someone outside the relevant courtroom declares that the accused is innocent even before the trial has begun and then goes onto deplore the judge for his decision to charge the accused with the offence?

Wonder whether declaring that the accused is innocent and condemning the judge before the trial has even begun vitiates the rule of sub judice? Whether such statements made on a Hultsdorf pavement to the media are itself further contempt of court? Whether they amount to usurpation by any other person of the function of that court to decide the matter before it according to law and are tantamount to conduct calculated to undermine public confidence in the administration of justice and touches upon the doctrine of ‘scandalising court’?

The contempt that is envisaged in this particular case of a cell phone ringing is not one that conflicts with freedom of expression. This one deals with disorder in court. Disorder has many meanings and includes a lack of order or regular arrangement, confusion or disturbance. It also includes unruly behaviour in court, a lack of disregard to maintain the decorum of court in order for it to function properly, the sort of order and discipline that is indispensable to maintain the dignity of court.

A cacophony of different ring tones shattering the stoic silence of courtrooms shrouded in solemnity cannot co exist with the gravitas demanded of its proceedings. But according to the considered judgement of the secretary of the High Court lawyers association, the ‘involuntary’ ringing of a cell phone cannot amount to contempt.

It is true the general definition for contempt of court is ‘an act or omission must be calculated to interfere with the administration of justice.’ But does this apply to disturbances in court? Nowhere in the list of defences available to a charge of contempt is the defence of involuntary disturbance stated. While all the great legal minds have been pondering over the weight that should be given to holding fair trials vis-a-vis freedom of expression, none have sought to defend disturbances in court arising out of any source.

In fact Article 10(3) of the European Convention of Human Rights states that the exercise of freedoms such as the freedom of expression may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, for – among others – the prevention of disorder or crime or for maintaining the authority and impartiality of the judiciary.

Hate to say this and risk hurting the sensitivities of this bunch of high court lawyers, but no cell phone rings involuntarily. One cannot consciously wish a phone to ring. It rings only because someone has dialled its number and the ring is only heard because the owner of the phone has not ‘voluntarily’ switched it off or voluntarily failed to press the mute button.

This lapse is what prevents the owner from claiming that a phone can ring involuntarily as if it had a mind of its own and could kick start itself to life and ring out loud its existence. It can ring only if the owner has allowed it to ring by his omission – by his negligence – to switch it off. And by a stretch of analogy one could compare it to the case where, in the law of torts, a person brings a dangerous animal or thing to his premises. If the animal or thing should escape, even involuntarily even without the negligence of its owner, the owner is still held liable for all the consequential damage its causes whether it could be foreseen or not. The same will possibly apply to a robot in the future.

All lawyers know or are required to know that cell phones should be turned off inside court rooms. If the phone should ring it is because he or she has forgotten to switch it off. One cannot avail oneself of the defence of involuntariness when command and control are at the fingertips of one’s own hands. And it is puerile to attempt to do so, as this high court law practitioners have attempted to do in a pathetic bid to save a member of the same species.

They have advanced an opinion which if successfully held will entitle all lawyers to have cell phones in their pockets or lying about on the lawyers’ table in every court room of the land, including the supreme court, switched on free to ‘involuntary’ ring and, since ring tones can be freely downloaded online to include songs from any music genre ranging from the classics and rap to baila and punk rock, blare out Sex and Love Enrique’s Bailando or Baila Desmond’s Yamang bando Vesak ballanna at various levels of volume and claim involuntariness as a defence.

Last week when the judge donned a black cap and passed the death sentence upon ex DIG Vaas Gunawardena, his son and four others for the murder of Shiyam and pronounced they be hanged till they die, how do you think it would have been if, at that solemn moment, some lawyer’s cell phone had started ringing with the voice of Queen’s Freddie Mercury singing ‘Mama, just killed a man, put a gun against his head, pulled my trigger now he’s dead.” What a rhapsody that would have been – of course, blared involuntarily.

And that’s not all. The Secretary of the High Court Lawyers Association also has also extended support to any other Association willing to take up the same cause. They also plan to ask the Bar Association, Judicial Services Commission and the Chief Justice to take prompt action regarding this incident. And as the HCLA secretary declared, if they do not receive the ‘desired result’ they will decamp en masse with all the lawyers of the Colombo High Court, including all presidents’ counsel, to defend a member of their black coat tribe. What is planed is to lay siege on the Galle court house. And abandon all cases listed to be heard on that date at the Hultsdorf High Court.

Let Mr. Rienzie Arsecularatne attend his court date on 22nd January and conduct his own case. No doubt he will present his own defence to the charge of contempt with great skill and will not need the voluntary advice of possible defences offered to him by a motley of juniors. And let justice take its course. Far better for a judge to give a ruling on the applicability of ‘involuntariness’ if the accused offers it as a defence rather than have some black ties jumping the gun and telling us what the law is. Only six weeks to wait for trial. No rush.

What a pity however that none of this fire was shown by the same legal group when last month, not even three weeks ago, on November 18th, Mount Lavinia Chief Magistrate Mohammed Sahabdeen sentenced a suspect in a heroin case to 8 months imprisonment after he pleaded guilty to the charge of contempt by yawning loudly in the Court premises. Now wouldn’t a bodily function like yawning or sneezing or a thunderous roar of flatulence qualify more for involuntary status than an inanimate cell phone ringing only because the owner had forgotten to switch it off? Or was it simply that the suspect who was jailed for 8 months for an involuntary bodily spasm was not a president’s counsel and thus didn’t quite fit the legal bill?

Take one buck less and save twenty thousand Ravi Karunanayake: Another source, another slice Finance Minister Ravi Karunanayake’s budget proposal to place a tax on cash withdrawals from banks certainly cannot be part of any hygiene crusade he intends to launch to dissuade people from getting their hands soiled touching the filthy lucre. Instead it represents a callous attempt to rob the people of their hard earned money after their income has already been taxed to the limit. This repugnant tax revolts against natural justice and outrages common sense. The Finance Minister may be brimming with confidence that the motion of no confidence lodged against him by the ‘joint’ opposition will be defeated when it comes up for debate and vote. But will his cockles swell with the same bravado when it comes to winning the people’s confidence with this wanton tax that seeks to place Rs 20,000 tax on every million or Rs 300,000 on every 10 million a person withdraws in cash from banks. Today a million bucks is not the million bucks it used to be a few years ago which made the possessor of such a sum the envy of society and elevated him to a new social status and allowed entry to the exclusive millionaire’s club. Today it is only scare evidence of being over the poverty line. It is also a dangerous precedent. The proposed 2 per cent tax on a million and the 3 per cent tax on 10 million can be increased overnight even as the cutoff point of one million can be decreased overnight. Next year it can be lowered to Rs. 500,000, then Rs. 100,000 and to every thousand bucks until ultimately it applies to all cash withdrawals. Recent history is littered with examples of desperate Finance Ministers scraping the barrel to find more sources to balance the budget. Cash is legal tender and no one can legally refuse payment in cash or legally decline to accept payment in cash. When a person deposits his or her hard-earned money in a savings account he does so expecting an increase in the original amount according to the prevalent rate of interest. Now he will find that it has been reduced by Rs 20,000 if he wishes to withdraw it in cash to conduct a transaction which is to be done on a ‘cash only’ basis or wishes to see the colour of his own money as he is legally entitled to see. When people deposit their money in current accounts at banks they do so to facilitate transactions either by issuing account-payee cheques or cash cheques depending on the circumstances. Giving a cash cheque can also inspire confidence in the receiver since the cheque can be cashed immediately and even enable the issuer to obtain a discount. But no more. When the seller cashes his cheque he will find that he will receive two percent less. Lanka hasn’t still crossed the door to a cashless society of a plastic world. We are not even standing on its threshold. Cash is still required for a great variety of day to day transactions. A person can refuse to accept a cheque but not cash. He has every right to demand payment in cash. Take the private sector. Thousands of employers throughout the country pay their workers in cash. Not all employees have bank accounts where their salaries can be deposited as part of a standing order. Even if they do, there are some who will prefer to be paid in cash, as they are legally entitled to demand. This means that the company has to withdraw a large amount of cash from their accounts at the banks to meet the payroll. The company, should this tax be passed, will have to coffer a further 20,000 bucks to do so for every million withdrawn. 300,000 if the salary bill is over Rs 10million. If the private sector is looked as the engine of growth, is it wise to put an extra load on the motor? Hospital bills must be paid in cash. Today it is the practice of private hospitals to demand payment of the entire bill before a patient is discharged or, in the case of death, to hold onto the corpse as ransom until the full amount is duly settled, cash on the nail. A Court settlement where the money has to be paid into court is done on the basis of cash. Cheques do not meet the judicial requirement. Sellers of land demand cash in certain instances and will not even take a bank guarantee. The buyer will then have to withdraw millions in cash from his bank and will be forced to pay not the seller but the government extra Rs 300,000 over the sale price. The tax has been justified on the basis that the country should move towards a cashless society and all payments should be done by either cheque or credit card. Credit Card? The public will have to pay 3.5 per cent more than the prevalent interest rate and will be burdened with a debt for months to come. Another reason given is the risk of transporting huge amounts of cash. True. But isn’t it incongruous that the robbery takes place at the bank itself when the governments pick pocket a cool Rs.300,000 even before the citizen has walked out of the bank. But if the Finance Minister sticks to his guns and refuses to holster his pistols and you find you can’t fight the new tax, here’s a way to beat it. Next time you wish to withdraw a million of your own money from the bank in cash, settle for one buck less. Simply write the cheque in the way shoe shops sell shoes. Write the cheque for Rs 999,999 and cash it. Since the tax threshold of a million is not crossed, you will save Rs 20,000. And if you wish to withdraw Rs. 10 million follow this procedure. Write ten cheques for Rs999,999. and you will have 9,999,990. To meet the shortfall, write another cheque for Rs10. Each cheque leaf will cost you Rs 5. Thus for an outlay of a mere 55 bucks you will save Rs 300,000 and can come home laughing all the way from the bank.