By Singhanathage Tharapathi Jayanaga
[caption id="attachment_115775" align="alignright" width="254"]
Singhanathage Tharapathi Jayanaga [/caption]
Recently, public interest in the matter of contempt of court was aroused by the incarceration of a celebrity and a Member of Parliament (MP) who was also a Deputy Minister in the former Parliament. Ranjan Ramanayake, at a press conference held on 21 August 2017, had made a statement which was held by three judges of the Supreme Court (SC) as contemptuous.
He was found guilty of contempt of the SC, and was sentenced to four years’ rigorous imprisonment (RI). The judgement and the order caused interest among the legal fraternity and also among journalists, politicians, sociologists, and members of the public, which was manifested by a large number of articles published in the newspapers on this issue.
Ramanayake, unlike many politicians, was a MP who was outspoken and in the habit of calling a spade a spade. There were no charges of cheating, dishonesty, corruption, or misappropriation against him. There were no elements of hypocrisy in his conduct. He spoke fearlessly and quite oblivious to the consequences. His efforts were to expose corruption. Judging from his speeches and utterances made at press conferences, it is clear that this MP does not know that there are restrictions on the freedom of speech. He simply did not know that by virtue of being a MP, he is not privileged to utter anything in Parliament. He did not know what to say and where to say such. He did not realise that if he is sent to jail, rightly or wrongly, he would become a political non-entity for a long time to come. He should have been able to substantiate what he has uttered.
On a petition filed by an interested party, a rule was issued against the respondent, Ramanayke, to show cause as to why he should not be punished for contempt of court in terms of Article 105(3) of the Constitution. The prosecution that such utterances were made by calling the media personnel who recorded the above at the particular press conference.
The respondent, giving evidence, said that he is not enjoying the benefits and privileges given to MPs; his sole objective was to expose corruption. He said that after a meeting at Temple Trees, he had addressed journalists and said that 95% of the lawyers and judges are corrupt. He emphasised that the word “judges” slipped out of his mouth, whereas his intention was to speak about lawyers. His desire was to criticise the former Minister of Justice. When the word judges slipped out, he had corrected himself immediately, saying: “Meh, meh, lawyers.” He said that he had no intention to refer to judges in his statement made on 21 August 2017.
The Court held that “if this was his defence, he could have easily corrected this mistake and apologised for the mistake in his subsequent statements made to an electronic media television channel. Instead, he had referred to judges in those voice cuts”. On that basis, the Court rejected his defence. The Court observed that “...The respondent admitted in evidence that he said the following words when he made the above statement: ‘Majority in Sri Lanka are corrupted judges, corrupted lawyers. They work for money.’”
The Defence Counsel cited Perera v. The King 1952 NLR 293, where a MP was found guilty of contempt, and the Privy Council held that “the criticism was honest criticism on a matter of public importance”. However, the SC did not follow this case.
Definition of contempt of court
To speak loosely, contempt of court may be twofold. Firstly, the deliberate violation of court orders; and secondly, utterances or publications which have the tendency to bring the administration of justice into disrepute.
As far as the offence of contempt of court is concerned, the essence of the matter is the tendency to interfere with the due course of justice. “Any act which significantly tends to impede or frustrate the administration of justice or bring it to ridicule may be contempt of Court.” The Chief Justice (CJ) of England, Lord Charles Arthur Russell has, in R v. Gray [1900] 2 QB 36, DC, observed that “any act done or writing published or utterance made calculated to bring a court or a judge of court into contempt or to lower his authority is contempt of court.”
Justice Felix Frankfurter, in Offutt v. United States (1954) 348 US 11, observed that this power is not entrusted to the court in order to protect the dignity of the court against insult or injury – as the expression “contempt” may seem to suggest. The test then, in each case, is whether the impugned utterance or publication is calculated to interfere with the due course of justice or the proper administration of justice by the court, or whether it will erode public confidence in the Judiciary.
Freedom of speech
The freedom of speech and expression is one of the hallmarks of democracy. Article 14 of our Constitution guarantees this. It is a core value in the democratic process. There are many benefits of freedom of expression. Among them, one of the foremost benefits is that it can expose immoral or unlawful activities, or corruption.
Freedom of speech is a right jealously guarded in many countries with modern democracies, subject, however, to certain limitations. Freedom of speech does not mean the freedom of a wild ass. They dictate what a person may say legally and what he cannot say. Freedom of speech does not mean the freedom to have “all” speech. The concept is that one should be able to express something in such a way that one would not be visited by legal consequences.
Criticism of the Judiciary
It is open to anyone to express fair reasonable legitimate criticism of any act or conduct of a judge in his judicial capacity, or even to make proper and fair comment on any decision given by them because “justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”, as Lord James Richard Atkin observed in Ambard v. Attorney General of Trinidad and Tobago AIR 1936 PC141.
“The contempt jurisdiction is not given for the purpose of restricting honest criticism based on rational grounds of the manner in which the court performs its functions.” It should not be malicious and dishonest, and calculated to bring the administration of justice and the judicial system into disrepute.
Fair criticism of a judgement is not only permissible, but should be encouraged, but scurrilous or disrespectful remarks are still not permissible. To ascribe motive to a judge under the garb of fair criticism is not permissible, as judges don’t defend their decisions in public.
Reasonable arguments against judicial acts for public good are not contempt of court. Lord Alfred Thompson Denning was of the view that every effort must be made to preserve the right of fair comment, even if it is outspoken. One must also remember that the judges can neither reply to their criticisms, nor can they enter into a public debate.
Punishment for contempt
Ramanayake’s case was heard in terms of Article105(3) of the Constitution, which is broad. Article 105(3) of the Constitution has vested, in both the SC and the Court of Appeal, the power to hear cases of contempt, committed by anyone, anywhere, against any court or tribunal. This Article gives power to punish the offender with imprisonment or fine, or with both, as the court may deem fit.
The SC, by hearing the case against the respondent Ramanayake, effectively denied his right of appeal. There is no minimum or maximum punishment prescribed in the Article. In a fair criminal justice system, the accused has a right to know the sentence that could be imposed on him.
In the Indian case of Dhrubadeo Tewari v. Thakorlal Ganguly 1970 Cr.L.J. 1687, it was observed that “contempt of court is not an ordinary proceeding, and the question involved is a serious one. The inherent jurisdiction must be exercised with care, with very great care in putting into force its power and sending persons to prison”.
The power to punish is to see that the faith of the people in the administration of justice remains intact. While awarding a sentence on a contemnor, the court does so to uphold the majesty of law, and not with any idea of vindicating the prestige of the court or to uphold its dignity. It is really to see that the unflinching faith of the people in the courts remains intact.
Is the punishment imposed on Ramanayake commensurate with the alleged culpable conduct?
Anthony Tony Fernando was convicted by the SC for contempt of court for repeatedly making applications, and thereby the abuse of the process of the court. The court sentenced Fernando to one year of RI. He was imprisoned on the same day. Fernando appealed to the committee established under Article 28 of the United Nations International Covenant on Civil and Political Rights (UNICCPR).
In Communication Number CCPR/C/83/D/1189/2003 (2005), the committee came to the following findings and made the following observations: “No reasoned explanation has been provided by the court as to why such a severe penalty was warranted…and the committee concludes that the author’s detention was arbitrary and in violation of Article 9 Paragraph 1 of UNICCPR.”
The committee also noted that the State had violated Article 9 Paragraph 1 of the ICCPR; that is that the arbitrary deprivation of liberty and detention has been prohibited. Similar observations were made by the same UN Committee regarding MP S.B. Dissanayake’s case too. They said the imprisonment was excessive and that the judges have not given reasons for giving such harsh punishment.
Recent Indian cases
The most recent case in India on the subject was against an advocate practising in the SC of India, Prashant Bhushan. Bhushan tweeted as follows: “Chief Justice of India rides a 50 lakh motorcycle belonging to a Bharatiya Janata Party Leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC of India in lockdown mode, denying citizens their fundamental right to access justice!”. Apart from that, another tweet was published in The Times of India, also made by Bhushan, which was also critical of the Indian SC and former CJs.
Judges held him to have committed contempt, on the grounds that he has brought the administration of justice into disrepute and is capable of undermining the dignity and authority of the SC of India. There was a huge public outrage on this finding, which compelled the judges to impose a nominal punishment on Bhushan. He was fined just a token fine of one Indian rupee.
Another well-known case was that of Arundhati Roy – the well-known award-winning writer. She was charged for contempt for protesting against an order, and was sentenced for one day. She criticised an order made by the court and even staged a protest in front of the court. The court reasoned that freedom of speech and expression is not absolute, but is subject to restrictions prescribed by law, such as the Contempt of Courts Act. Furthermore, the court found that Roy’s statements were not made in good faith and not in the public interest, and therefore could not be considered fair judicial criticism.
Conclusion
The SC in Ramanayake’s case has not given any specific reason for the sentence of four years’ RI being imposed on the respondent Ramanayake. Any judicial decision must be based on reason. It is more so when the law gives unlimited sweeping powers of punishment to the court. All the authorities cited above show that the courts in many countries were loath to impose a prison term unless there are compelling reasons to do so.
Contempt jurisdiction is an unusual type. It is a jurisdiction combining “the jury, the judge, and the hangman” (vide the Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895 referred in Contempt of Court by Justice J.D. Kapoor at page 317). The power to punish for contempt is unique to courts. It must, therefore, be exercised cautiously, wisely, and with circumspection.
Lord Denning has observed that punishment should not be calculated to preserve the court’s dignity. “Nor will we use this power to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than the freedom of speech itself. It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest…we must rely on our own conduct itself to be its own vindication.”
Sri Lanka has ratified and is a signatory to the ICCPR, and Parliament accordingly passed a law. Section 4(2) of the ICCPR Act No. 56 of 2007 reads: “Every person convicted of a criminal offence under any written law, shall have the right to appeal to a higher court against such conviction and any sentence imposed.”
The respondent, Ramanayake, was deprived of this right. Article 9(1) of the ICCPR prohibits the deprivation of liberty of a person unless in accordance with the procedure established by law. It also prohibits the arbitrary detention of anyone. If the imprisonment imposed is excessive, or does not commensurate with the alleged culpable conduct, then it could be said that the respondent is under arbitrary detention, which is expressly prohibited by the above Article.
It is submitted that the court has failed to take into account the circumstances and the nature of the offence committed by the respondent in deciding upon the punishment. Considering the nature of the offence, a suspended term would have been more effective as a deterrent, and would perhaps have served to rehabilitate him, instead of a custodian term.
The case against Ramanayake poses many questions regarding the law relating to contempt of court cases in Sri Lanka. Over a long period of time, there have been various expressions of dissatisfaction about not having a statute consolidating all the laws relating to the contempt of court in Sri Lanka. There should also be a right of appeal, lest we would be seen as a primitive society.
Thus, Sri Lanka’s practice of imposing long sentences has been the subject of criticism by international agencies. Such imposition of jail terms without being able to appeal is a violation of the ICCPR as well as the Sri Lankan Constitution itself.
This deserves to be taken up for serious debate by the Sri Lankan public. After all, on the one hand, it affects the liberty of the subject, and on the other hand, the freedom of speech, and any uncalled for restriction upon such a freedom is not healthy for democracy. Fair criticism is a hallmark of a civilised democratic society. Criticism must be encouraged.
Unjustified and unwarranted jail terms may send a powerful message to the public that would silence them, for fear of reprisals. It would stifle the freedoms and basic norms of democracy. The public may fear to expose corruption in any organ of the Government. For a healthy democracy, whistleblowers must be encouraged. This country must have a consolidated, comprehensive law of contempt of court. It must be a law which lays down a fair procedure, punishment, and factors that must be taken into consideration in imposing punishment and the right of appeal. I trust that the Bar Association of Sri Lanka will consider this issue seriously.
(The writer is a President’s Counsel)
Singhanathage Tharapathi Jayanaga [/caption]
Recently, public interest in the matter of contempt of court was aroused by the incarceration of a celebrity and a Member of Parliament (MP) who was also a Deputy Minister in the former Parliament. Ranjan Ramanayake, at a press conference held on 21 August 2017, had made a statement which was held by three judges of the Supreme Court (SC) as contemptuous.
He was found guilty of contempt of the SC, and was sentenced to four years’ rigorous imprisonment (RI). The judgement and the order caused interest among the legal fraternity and also among journalists, politicians, sociologists, and members of the public, which was manifested by a large number of articles published in the newspapers on this issue.
Ramanayake, unlike many politicians, was a MP who was outspoken and in the habit of calling a spade a spade. There were no charges of cheating, dishonesty, corruption, or misappropriation against him. There were no elements of hypocrisy in his conduct. He spoke fearlessly and quite oblivious to the consequences. His efforts were to expose corruption. Judging from his speeches and utterances made at press conferences, it is clear that this MP does not know that there are restrictions on the freedom of speech. He simply did not know that by virtue of being a MP, he is not privileged to utter anything in Parliament. He did not know what to say and where to say such. He did not realise that if he is sent to jail, rightly or wrongly, he would become a political non-entity for a long time to come. He should have been able to substantiate what he has uttered.
On a petition filed by an interested party, a rule was issued against the respondent, Ramanayke, to show cause as to why he should not be punished for contempt of court in terms of Article 105(3) of the Constitution. The prosecution that such utterances were made by calling the media personnel who recorded the above at the particular press conference.
The respondent, giving evidence, said that he is not enjoying the benefits and privileges given to MPs; his sole objective was to expose corruption. He said that after a meeting at Temple Trees, he had addressed journalists and said that 95% of the lawyers and judges are corrupt. He emphasised that the word “judges” slipped out of his mouth, whereas his intention was to speak about lawyers. His desire was to criticise the former Minister of Justice. When the word judges slipped out, he had corrected himself immediately, saying: “Meh, meh, lawyers.” He said that he had no intention to refer to judges in his statement made on 21 August 2017.
The Court held that “if this was his defence, he could have easily corrected this mistake and apologised for the mistake in his subsequent statements made to an electronic media television channel. Instead, he had referred to judges in those voice cuts”. On that basis, the Court rejected his defence. The Court observed that “...The respondent admitted in evidence that he said the following words when he made the above statement: ‘Majority in Sri Lanka are corrupted judges, corrupted lawyers. They work for money.’”
The Defence Counsel cited Perera v. The King 1952 NLR 293, where a MP was found guilty of contempt, and the Privy Council held that “the criticism was honest criticism on a matter of public importance”. However, the SC did not follow this case.
Definition of contempt of court
To speak loosely, contempt of court may be twofold. Firstly, the deliberate violation of court orders; and secondly, utterances or publications which have the tendency to bring the administration of justice into disrepute.
As far as the offence of contempt of court is concerned, the essence of the matter is the tendency to interfere with the due course of justice. “Any act which significantly tends to impede or frustrate the administration of justice or bring it to ridicule may be contempt of Court.” The Chief Justice (CJ) of England, Lord Charles Arthur Russell has, in R v. Gray [1900] 2 QB 36, DC, observed that “any act done or writing published or utterance made calculated to bring a court or a judge of court into contempt or to lower his authority is contempt of court.”
Justice Felix Frankfurter, in Offutt v. United States (1954) 348 US 11, observed that this power is not entrusted to the court in order to protect the dignity of the court against insult or injury – as the expression “contempt” may seem to suggest. The test then, in each case, is whether the impugned utterance or publication is calculated to interfere with the due course of justice or the proper administration of justice by the court, or whether it will erode public confidence in the Judiciary.
Freedom of speech
The freedom of speech and expression is one of the hallmarks of democracy. Article 14 of our Constitution guarantees this. It is a core value in the democratic process. There are many benefits of freedom of expression. Among them, one of the foremost benefits is that it can expose immoral or unlawful activities, or corruption.
Freedom of speech is a right jealously guarded in many countries with modern democracies, subject, however, to certain limitations. Freedom of speech does not mean the freedom of a wild ass. They dictate what a person may say legally and what he cannot say. Freedom of speech does not mean the freedom to have “all” speech. The concept is that one should be able to express something in such a way that one would not be visited by legal consequences.
Criticism of the Judiciary
It is open to anyone to express fair reasonable legitimate criticism of any act or conduct of a judge in his judicial capacity, or even to make proper and fair comment on any decision given by them because “justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”, as Lord James Richard Atkin observed in Ambard v. Attorney General of Trinidad and Tobago AIR 1936 PC141.
“The contempt jurisdiction is not given for the purpose of restricting honest criticism based on rational grounds of the manner in which the court performs its functions.” It should not be malicious and dishonest, and calculated to bring the administration of justice and the judicial system into disrepute.
Fair criticism of a judgement is not only permissible, but should be encouraged, but scurrilous or disrespectful remarks are still not permissible. To ascribe motive to a judge under the garb of fair criticism is not permissible, as judges don’t defend their decisions in public.
Reasonable arguments against judicial acts for public good are not contempt of court. Lord Alfred Thompson Denning was of the view that every effort must be made to preserve the right of fair comment, even if it is outspoken. One must also remember that the judges can neither reply to their criticisms, nor can they enter into a public debate.
Punishment for contempt
Ramanayake’s case was heard in terms of Article105(3) of the Constitution, which is broad. Article 105(3) of the Constitution has vested, in both the SC and the Court of Appeal, the power to hear cases of contempt, committed by anyone, anywhere, against any court or tribunal. This Article gives power to punish the offender with imprisonment or fine, or with both, as the court may deem fit.
The SC, by hearing the case against the respondent Ramanayake, effectively denied his right of appeal. There is no minimum or maximum punishment prescribed in the Article. In a fair criminal justice system, the accused has a right to know the sentence that could be imposed on him.
In the Indian case of Dhrubadeo Tewari v. Thakorlal Ganguly 1970 Cr.L.J. 1687, it was observed that “contempt of court is not an ordinary proceeding, and the question involved is a serious one. The inherent jurisdiction must be exercised with care, with very great care in putting into force its power and sending persons to prison”.
The power to punish is to see that the faith of the people in the administration of justice remains intact. While awarding a sentence on a contemnor, the court does so to uphold the majesty of law, and not with any idea of vindicating the prestige of the court or to uphold its dignity. It is really to see that the unflinching faith of the people in the courts remains intact.
Is the punishment imposed on Ramanayake commensurate with the alleged culpable conduct?
Anthony Tony Fernando was convicted by the SC for contempt of court for repeatedly making applications, and thereby the abuse of the process of the court. The court sentenced Fernando to one year of RI. He was imprisoned on the same day. Fernando appealed to the committee established under Article 28 of the United Nations International Covenant on Civil and Political Rights (UNICCPR).
In Communication Number CCPR/C/83/D/1189/2003 (2005), the committee came to the following findings and made the following observations: “No reasoned explanation has been provided by the court as to why such a severe penalty was warranted…and the committee concludes that the author’s detention was arbitrary and in violation of Article 9 Paragraph 1 of UNICCPR.”
The committee also noted that the State had violated Article 9 Paragraph 1 of the ICCPR; that is that the arbitrary deprivation of liberty and detention has been prohibited. Similar observations were made by the same UN Committee regarding MP S.B. Dissanayake’s case too. They said the imprisonment was excessive and that the judges have not given reasons for giving such harsh punishment.
Recent Indian cases
The most recent case in India on the subject was against an advocate practising in the SC of India, Prashant Bhushan. Bhushan tweeted as follows: “Chief Justice of India rides a 50 lakh motorcycle belonging to a Bharatiya Janata Party Leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC of India in lockdown mode, denying citizens their fundamental right to access justice!”. Apart from that, another tweet was published in The Times of India, also made by Bhushan, which was also critical of the Indian SC and former CJs.
Judges held him to have committed contempt, on the grounds that he has brought the administration of justice into disrepute and is capable of undermining the dignity and authority of the SC of India. There was a huge public outrage on this finding, which compelled the judges to impose a nominal punishment on Bhushan. He was fined just a token fine of one Indian rupee.
Another well-known case was that of Arundhati Roy – the well-known award-winning writer. She was charged for contempt for protesting against an order, and was sentenced for one day. She criticised an order made by the court and even staged a protest in front of the court. The court reasoned that freedom of speech and expression is not absolute, but is subject to restrictions prescribed by law, such as the Contempt of Courts Act. Furthermore, the court found that Roy’s statements were not made in good faith and not in the public interest, and therefore could not be considered fair judicial criticism.
Conclusion
The SC in Ramanayake’s case has not given any specific reason for the sentence of four years’ RI being imposed on the respondent Ramanayake. Any judicial decision must be based on reason. It is more so when the law gives unlimited sweeping powers of punishment to the court. All the authorities cited above show that the courts in many countries were loath to impose a prison term unless there are compelling reasons to do so.
Contempt jurisdiction is an unusual type. It is a jurisdiction combining “the jury, the judge, and the hangman” (vide the Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895 referred in Contempt of Court by Justice J.D. Kapoor at page 317). The power to punish for contempt is unique to courts. It must, therefore, be exercised cautiously, wisely, and with circumspection.
Lord Denning has observed that punishment should not be calculated to preserve the court’s dignity. “Nor will we use this power to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than the freedom of speech itself. It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest…we must rely on our own conduct itself to be its own vindication.”
Sri Lanka has ratified and is a signatory to the ICCPR, and Parliament accordingly passed a law. Section 4(2) of the ICCPR Act No. 56 of 2007 reads: “Every person convicted of a criminal offence under any written law, shall have the right to appeal to a higher court against such conviction and any sentence imposed.”
The respondent, Ramanayake, was deprived of this right. Article 9(1) of the ICCPR prohibits the deprivation of liberty of a person unless in accordance with the procedure established by law. It also prohibits the arbitrary detention of anyone. If the imprisonment imposed is excessive, or does not commensurate with the alleged culpable conduct, then it could be said that the respondent is under arbitrary detention, which is expressly prohibited by the above Article.
It is submitted that the court has failed to take into account the circumstances and the nature of the offence committed by the respondent in deciding upon the punishment. Considering the nature of the offence, a suspended term would have been more effective as a deterrent, and would perhaps have served to rehabilitate him, instead of a custodian term.
The case against Ramanayake poses many questions regarding the law relating to contempt of court cases in Sri Lanka. Over a long period of time, there have been various expressions of dissatisfaction about not having a statute consolidating all the laws relating to the contempt of court in Sri Lanka. There should also be a right of appeal, lest we would be seen as a primitive society.
Thus, Sri Lanka’s practice of imposing long sentences has been the subject of criticism by international agencies. Such imposition of jail terms without being able to appeal is a violation of the ICCPR as well as the Sri Lankan Constitution itself.
This deserves to be taken up for serious debate by the Sri Lankan public. After all, on the one hand, it affects the liberty of the subject, and on the other hand, the freedom of speech, and any uncalled for restriction upon such a freedom is not healthy for democracy. Fair criticism is a hallmark of a civilised democratic society. Criticism must be encouraged.
Unjustified and unwarranted jail terms may send a powerful message to the public that would silence them, for fear of reprisals. It would stifle the freedoms and basic norms of democracy. The public may fear to expose corruption in any organ of the Government. For a healthy democracy, whistleblowers must be encouraged. This country must have a consolidated, comprehensive law of contempt of court. It must be a law which lays down a fair procedure, punishment, and factors that must be taken into consideration in imposing punishment and the right of appeal. I trust that the Bar Association of Sri Lanka will consider this issue seriously.
(The writer is a President’s Counsel)