On two occasions the United Nations Human Rights Committee has viewed that the GoSL has abused contempt of court laws
The Human Rights Committee of the United Nations has found that the Supreme Court of Sri Lanka has abused its contempt of court powers in the case of Anthony Michael Emmanuel Fernando (CCPR/C/83/D/1189/2003—29th April, 2005). The UNHRC in paragraph 10 of their Views stated as follows:
The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the state party has violated articles 9, paragraph 1, of the International Covenant on Civil and Political Rights.
While it is within the power of the courts of Sri Lanka to punish persons on the basis of contempt of court it should be noted that Sri Lanka does not have legislation on contempt of court and the manner in which this jurisdiction should be exercised.
In the communication filed by Mudilanage S.B. Disanayake vs Sri Lanka, (CCPR/3/93/D1373/2005 (2008)) the Human Rights Committee held that Sri Lanka as the state party has violated article 9 paragraph 1, article 19 and article 25 (b) of the International Covenant on Civil and Political Rights In this case S.B. Disanayake, a member of parliament was sentenced by the Supreme Court of Sri Lanka to two years of rigorous imprisonment by using the powers of contempt of court
In both of these cases the UNHRC held that the judgements of the Supreme Court violated the provisions of the International Covenant on Civil and Political Rights. It also observed that Sri Lanka as the state party has failed to bring about legislation on contempt of court and to develop procedures on dealing with the court’s jurisdiction on the contempt of court law. In both cases the Human Rights Committee expressed the view that the state should pay compensation for the illegal detention of both of the Petitioners and that the law relating to contempt of court should be brought about by way of legislation in Sri Lanka. In both cases the Human Rights Committee advised the state party to prevent future violations of similar type.
The Bar Council of Sri Lanka proposed a draft law relating to contempt of court in the country. This document was entitled, “Contempt of Court (Draft) Act”. The draft was submitted to parliament, however, parliament has not taken action in order to bring this out as a bill and ensure that a law relating to contempt of court is created in Sri Lanka.
The powers of the Sri Lankan Supreme Court have been severely undermined by the executive over a long period of time. In 1972 the court’s power of judicial review was removed by the Constitution of that year. This power was never restored. Thus the Supreme Court of Sri Lanka is much less powerful than the courts of other jurisdictions where the unrestricted power of judicial review which is considered an inherent tradition of the Supreme Court. For example, the Indian Supreme Court has the power of judicial review and it constantly reviews legislation when it is challenged as being ultra vires to the constitution.
The power of the Sri Lankan Supreme Court to review laws is confined to references by parliament immediately prior to the act’s promulgation. Once the legislation is passed by parliament the Supreme Court has no power to review the legislation.
There have been numerous other attacks on the Supreme Court which have been enumerated by many writers over a long period of time. The 1978 Constitution under article 35 granted absolute immunity to the executive president. This immunity is an enormous restriction on the power of the Supreme Court to examine the legality or illegality of acts. Even the failures to implement the 17th Amendment to the Constitution could not be challenged because of this provision of the Constitution. There are many other parts of the Constitution that undermine the power of the Supreme Court. For example, any member of the Judicial Service Commission can be removed by the president at any time.
Besides this the appointments to the courts also come under the criticism of observers.
Worst is the closer links that executive had built with the judiciary. Former chief Justice Sarath Silva justice an interview with the press stated that:
…..earlier there were times I would go and meet him, try to speak about some of the things that were bothering me.
I would say that we may have to decide a particular case in a particular way and that I’m only informing you. That is within the bounds of a chief justice to go and say, especially because we have personal contact as well….not the ultimate judgement as such, but I used to keep him informed. The North-East de-merger, I definitely notified him. I said be ready for this, I may have to do this. Even the petroleum case, he knew about it. He can’t day he didn’t know. LMSL, seated. But I found…..very often I found a different reaction from him, especially on these human rights and governance issues which affected me very deeply. If he had complied with the court order on petroleum products the country would have benefitted,
In fact, the problems that affect the Sri Lankan administration of justice as a whole and the attack on the independence of the judiciary is a long tale that has been documented by many including such organisations as the International Bar Association.
Under such circumstances it is the duty of the Supreme Court itself to request the legislature to speedily enact a law on contempt of court. As a draft of such a law had been submitted by the Sri Lankan Bar Association, taking into consideration the developments in countries such as India and elsewhere, there should be no real impediment to bring about such a law speedily.
The law on contempt of court can be justified only when there the authority of the court is strongly established in the minds and the hearts of the people. This is not merely a legalistic matter but one of important moral grounds. The courts must bring about the situation where people in the country would begin to firmly believe the capacity of the courts to defend the citizens against executive power and the individual feels confident that the courts will place priority in the defense of individual freedoms. Very senior judges from the courts themselves have publicly expressed regret about the lessening of this capacity in the courts.
Under these circumstances the courts of Sri Lanka should not exercise their contempt powers except in extreme circumstances on individual citizens. It should, in fact, exercise its power against the branches of the government that defies its authority. For example in 1994 a committee appointed by the ministry of justices, headed by a Solicitor General, who later became the Attorney General and several other persons stated that the Sri Lankan police have failed to comply with the orders of courts to an extent that the courts should find ways to punish such defiance of authority. In recent months there have been occasions when warrants have had to be issued on very senior police officers to ensure that they comply with court orders.
Under such circumstances to use the contempt of court power on individual citizens when the executive and government agencies so openly flout the court’s authority will not enhance the authority of the courts. In fact, the intimidation caused to both the lawyers and the litigants by such an exercise will further diminish the moral authority of the courts.
The Asian Human Rights Commission urges the Supreme Court of Sri Lanka to use its authority to expedite the process of an enactment of a law relating to contempt of court and not to follow the earlier instances cited above of the abuse of the authority of the contempt of court powers.
For detailed accounts of the contempt of court in Sri Lanka please see: Towards a Contempt of Court Law. Details of this book may be found at: http://www.ahrchk.net/pub/mainfile.php/books/322/
