Columns

An eminently rigorous sentence

If it was thought (and indeed, it would have been, judging from the openly insulting behavior of the BBS and its representatives during the court proceedings at the Homagama Magistrate’s Court), that the judiciary would not respond with the appropriate severity, then those misapprehensions may now be laid to rest.

In fact, observing the markedly subdued reactions of those representing the accused monk who had deposited himself in hospital at the time of the sentencing as they presented themselves before television cameras on Hulfsdorp, it appears that the decision has had a markedly salutary effect, almost immediately.

For many of us, applauding a decision imposing an eminently rigorous sentence for contempt, (nineteen years, to be served concurrently making it six years in all), does not come easy. Sri Lanka’s history of contempt of court has been a peculiar mixture of judges being extremely harsh on some occasions and unduly lenient in others. When a teacher of English Antony Michael Fernando was sentenced to one year rigorous imprisonment by the Supreme Court (per order of then Chief Justice Sarath Silva with Justices Yapa and Edussuriya agreeing), after he was determined to have ‘raised his voice’ and insisted on his right to pursue an application that he was urging himself before the Court in early 2003, this was perhaps a good instance of the former category of cases.

Unusually strong language by Court

Fernando was thereafter detained at the Welikada prisons and inhumanely physically abused by prison guards leading to criminal charges being filed against the torturers who were also named in a fundamental rights application filed on his behalf, though these cases did not result in justice being served.

While Fernando’s case is at one extreme, there are many more at the other extreme where the authority of the Court had been egregiously flouted with no apparent repercussions. Viewed objectively and putting aside the racial and religious motivations of the BBS, the scandalous conduct of its General Secretary at the Homagama Magistrate’s Court during the hearing of an application relating to the disappearance of journalist Prageeth Ekneligoda which led to this decision by the Appeal Court was unequivocally one such instance.

In finding the accused General Secretary of the BBS guilty, the Court of Appeal did not mince its language. The judges pointed out that the accused who had no connection to the case being heard at the Magistrate’s Court and had no standing to appear, had ‘addressed’ the Court without express or implied permission of the magistrate. He had intended to ‘intimidate’ the magistrate into granting bail to the suspects (all intelligence officers) after the magistrate had already refused to do so.

Intent to intimidate and coerce

This ‘address’ by the accused to the magistrate had been made in a high tone, to be heard ‘even by those waiting away from the court room’ and had been in ‘abusive, offensive and commanding’ language. In doing so, he had tried to ‘somehow force’ the judicial officer into obeying his commands and to reverse an already pronounced Order of the magistrate. It was proven beyond reasonable doubt that, despite not being a party to the case, the accused had come in support of the suspects deliberately to intimidate and coerce.

Among those coercive utterances was the statement by the accused to the Homagama Magistrate that this was the ‘white person’s law’ and that he did not accept that law. The Appeal Court reprimanded that statement in the strongest terms, observing that whether it is foreign-made or locally-made, it is the ‘prevailing law that the courts have to apply.’ It was further emphasized that ‘the Court will administer justice according to such law irrespective of its genesis.’ The accused’s statement was concluded to be an attempt to ‘degrade’ the honour and authority of Court and a categorical refusal to accept its authority, deserving therefore of the most stringent response.

Further, an additional factor weighing with the judges was that when state counsel and the lawyer representing the aggrieved party rushed back into the court room upon hearing the commotion and attempted to support the Magistrate whom they had found to be in a vulnerable situation in the face of the accused’s verbal onslaughts, they too had been abused with the state counsel being referred to as ‘impotent’ by the accused General Secretary. Assessing the testimony with judicious care, the Court of Appeal found that the evidence of the state counsel, the magistrate and the lawyer buttressed each other and were trustworthy while the testimony of the accused and his witnesses who spoke on his behalf were contradictory.

A wider principle in issue

No doubt, this decision of the Appeal Court will be a potentially strong deterrent to those wishing to follow in the turbulent if not thuggish footsteps of the accused in this case. But there is a wider principle in issue. Too often, calls for the codification of a law on contempt have been seen as a limitation on the discretion of judges to exercise their authority in such cases.

In Fernando’s case for example, the ruling against him was taken to the United Nations Human Rights Committee under the terms of the International Covenant on Civil and Political Rights, (ICCPR) with this columnist representing his case at the time. Thirteen jurists of the UN Committee agreed without dissent that, “no reasoned explanation has been provided …as to why such a severe and summary penalty was warranted in the exercise of the court’s power to maintain orderly proceedings when the only disruption was the repetitious filing of motions and one instance of ‘raising his voice’ in the presence of the court (U.N. Doc. CCPR/C/83/D/1189/2003 (2005).

While that may be so, it must also be even reluctantly conceded that, as this week’s Appeal Court decision amply shows, there are instances when, exercising the power of contempt in all its severity is, in fact, required.

In all respects therefore, Sri Lanka should look to enacting a Contempt of Court Act, in line with neighbouring countries in the region. This will be useful for keeping both unruly individuals dismissive of the authority of court and overly repressive judges, within the framework of the Rule of Law when contempt powers are in issue and are so exercised.