It emerged over the weekend that there had been some kind of deal to keep a former Sri Lankan government minister out of jail on contempt of court charges, but it fell through. Reaction to the jailing of S B Dissanayake for two years on December 7 concentrated on the fact that this deal had been broken. Up to the time of the verdict, the accused had looked confident that everything was arranged to secure his freedom, even going so far as to tell his legal team not to bother with a proper defence; his supporters and the media were aghast at his imprisonment. According to reports, believing in a deal that would grant him a suspended sentence or a lesser punishment led the former minister to give up the opportunity for a proper defence, despite efforts of his legal team to convince him otherwise.
However, the reaction of the Asian Human Rights Commission (AHRC) to these reports is to state that if there was some kind of deal done, it amounts to a grave betrayal of all principles for due process in a democracy. For there to be a prior deal arrived between the court and a litigant outside court violates the radical principles upon which the justice system is based. Where principles of justice are betrayed, cruelty is guaranteed. A civilised society is determined by the fact that all punishment mediated through the courts is determined exclusively according to established principles of justice. Among these principles is the necessity that justice be determined in open court through reasoning that everyone can hear, see and comprehend. This principle presupposes that no outside influences are brought to bear upon a case. When this principle is abandoned, justice is denied.
Contrast this latest contempt of court case with that of Michael Anthony Fernando, who was jailed by the Supreme Court for one year also for contempt. Tony Fernando at every stage refused to make a deal in order to be released from jail, and served out his term unflinchingly. Many senior lawyers told him only to ask for a pardon and he would be freed. In fact, when the case was taken up on a review application, the court offered him this way out. He refused it. The court construed his refusal adversely. But for this simple litigant, his innocence was a matter over which there could be no compromise. He wanted justice. He was instead forced to remain in jail. When he was finally freed, he was pursued mercilessly until a threat upon his life caused him to go into hiding, and then leave the country.
The remarkable thing about Tony Fernando’s case was the total absence of a reaction from the political establishment. Despite strong intervention into the case by the U.N. Special Rapporteur on the independence of judges and lawyers, who described his jailing as an act of injustice by the Supreme Court, and thousands of letters of appeal sent on his behalf could not overturn the decision. Nor could parliament be roused. There was no courage shown by anyone in the political establishment to stand for his case, despite its patent illegality.
Again contrast that case with the latest events, this time involving a high-profile former minister rather than an ordinary citizen. Immediately after the shock imprisonment, a plan was being drawn up to secure his release. We may well ask whether the purpose of this plan will be merely to free a politician, or perhaps also will be directed so as to serve the struggle for due process and the integrity of the courts in the country as a whole. It is that struggle which deserves our energy and support, to put right what has gone so terribly wrong in the administration of justice in Sri Lanka. For that purpose, it is necessary to unravel the mysteries surrounding any violations of due process that had taken place relating to this case.
Two cases perceived as abuse of contempt of court proceedings should be sufficient to awaken all concerned persons and cause serious examination of the fundamental ailments afflicting the judicial system of Sri Lanka. Both of these cases should be treated not as matters of contempt of court but rather as contempt of justice. It should also be noted that there is no clear law to deal with miscarriages of justice of this kind in Sri Lanka. Tony Fernando’s case speaks to the limitations of reviewing any judgment of the Supreme Court there. However, in other jurisdictions, including the United Kingdom and India, there are clear provisions by which wrongful convictions may be quashed even decades later. Sri Lanka desperately needs such a law. All those now taking up the cause of the former minister should pay attention to these vital issues affecting the administration of justice as a whole. Perhaps his allies in parliament could take the initiative of bringing forward draft laws to address the serious gaps in legislation which have allowed these cases to arise, and through which so many perpetrators of human rights abuses in Sri Lanka have escaped justice.
