Focus on Rights

The sentencing of SB; poetic justice or necessary catalyst?
The consternation evidenced in Hulftsdorp this Tuesday when former Minister SB Dissanayake was sentenced to two years rigorous imprisonment for contempt of court, is fitting testimony to the hypocrisy, if not the sadness of our times. Was even a faction of this same indignation present when last February, a lay litigant and teacher of English was sentenced on the spot to one year rigorous imprisonment by a Supreme Court bench of Chief Justice Sarath Nanda Silva and Justices P Edussuriya and H. Yapa to one year rigorous imprisonment for speaking loudly in court and persisting with his application?

Instead, I remember 'distinguished' members of the legal profession, (some of these very same members who are now appalled at the severity of the sentencing of the UNP politician), asserting that this was good punishment meted out to an upstart. One of the judges, the next seniormost to the Chief Justice who sat on the Bench at the time of Tony Fernando's sentencing and who, by all accounts, insisted most vociferously that the sentence not be reviewed, has now been nominated by the Constitutional Council for appointment to the Bribery and Corruption Commission, in a twist of somewhat predictable fate.

In retrospect, Tony Fernando was luckier than Gerald Perera, the torture victim who was slaughtered recently just prior to giving evidence in the High Court against his torturers. Before Fernando could also be killed, (highly disoriented and psychologically traumatised after eight months in prison where he had been brutalised allegedly by prison guards), he was taken out of the country by the Asian Human Rights Commission, which was the only civil society group to intervene in what the then UN Special Rapporteur, Param Coomaraswamy called "an act of most profound injustice."

SB Dissanayake's sentencing has, (in contrast to Tony Fernando's predicament), a tinge of poetic justice to it, discussion of the political overtones of which is more fitting for the ruder political discussions on television than in this column. Suffice to say that, the main opposition is now well served for the weak if not manipulative positions that it took in regard to safeguarding the independence of the judiciary when in government in 2002 and the better half of 2003.

Taken in a strict sense, Dissanayake's remarks most certainly amounted to 'scurrilous remarks" that "scandalised the court." as much as when a disgruntled litigant dissatisfied with a verdict that had been given, threw a book at Lord Denning and thereby committed clear contempt. However, the latter was disregarded by Lord Denning who preferred to abide by his own well reasoned reminder in Regina v Commissioner of Police of the Metropolis (1968, 2 QB 150, at 154), that "(contempt of court) is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise; more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations."

In England, it has been over one hundred years since a prison sentence has been handed down in cases of 'scandalising the court' and over sixty years since a successful action of any sort has been brought under this heading (DPP v. Gilbert Ahnee & Ors (1994) SCJ 100). The Indian courts have also, (except for the recent aberrant instance of the conviction and sentencing of Arundhati Roy by the Indian Supreme Court), generally exercised their contempt powers with circumspection.

This line of reasoning has its own relevance to Sri Lanka where a strong lobby has been calling for the enactment of a contempt of court act that will codify the principles in a manner similar to the Indian and English law. While we saw some movement in this regard last year when a parliamentary select committee was appointed with the apparent consensus of both the government and the opposition, this consensus seems to have disappeared into thin air now. There is an urgent need for this process to be revived.

While it is to be appreciated that, having 'no constituency, no purse and no sword, the judiciary must rely on moral authority', the upholding of such moral authority cannot come from harsh verdicts alone. In the democratic constitutional order, the judiciary is an independent pillar of state, constitutionally mandated to exercise the judicial authority of the state fearlessly and impartially. It has a vital function as the interpreter of the Constitution, the arbiter in disputes between organs of state and, ultimately, as the watchdog over the Bill of Rights. We need to see this role restored to its pristine state before this country descends truly into constitutional anarchy. If the sentencing of SB Disssanayake is a catalyst in this respect, then it is long past its time.

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