“… The Bar Association of Sri Lanka notes with concern the undue and unwarranted attacks on the law enforcement authorities, the Attorney General’s Department and now the judiciary….”
The Bar Association of Sri Lanka (BASL) in a press release has threatened contempt of Court action taken against Deputy Minister Ranjan Ramanayake for making some serious criticisms against the Courts and the legal profession. The damage done by the restriction of such criticism will far exceed any damage that may be done by such condemnation.
Why all this hue and cry; there are enough burning issues for BASL to deal with.
Let me Quote Lord Denning, on the question of the use of contempt of court for the defence of judiciary,
“…(This) 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. Nor will we use it to suppress those who speak against us. We do not fear criticism not 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. Those who comment can deal faithfully with all that is done in a court of justice. They can say we are mistaken and our decisions erroneous, whether they are subject to appeal or not. All we ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to those criticisms. We cannot enter into public controversy, still less political controversy. We must rely on our conduct itself to be its vindication.”
Many individuals and institutions have expressed their anxiety on such publicly announced threats on anyone who is - in opposition to any actual or apparent fault or error on the part of judiciary and the legal profession. The Bar Association wants Ranjan to specify the individual members of the judiciary or the legal fraternity that he aimed his attack on instead of making a general accusation. The BASL should specify what it considers as the undue and unwarranted attacks on the law enforcement authorities, and the AG’s Department. Some have even challenged that the BASL should spell out what it believes as the ‘undue and unwarranted attacks’ on the law enforcement establishments, and the AG’s Department. BASL in the past have admitted that basic forms of faults existed within the system of administration of justice in Sri Lanka.
Contempt of Court
An act of deliberate disobedience or disregard for the laws, regulations, or decorum of a public authority, such as a court or legislative body.
An individual may be referred to for contempt when he/she defies an order, fails to comply with a demand, tampers with documents, withholds evidence, disrupt proceedings through their actions, or otherwise defies a public official or holds it up to ridicule and disregard. The laws and regulations governing contempt have developed in a gradually fashion over time and make wide discretion to judges in determining both what comprise contempt and how it is penalised. [withhold evidence-highlighted, for as it was revealed at current PCoI that it has no powers to compel an accused to give evidence before it].
Contempt of court is conduct that opposes or defies the authority, justice, and dignity of the court. Contempt indictments may be brought against groups; lawyers or other court officers or personnel; jurors; witnesses; or people who insert themselves in a case, such as protesters outside a courtroom. Courts have great scope or margin in making contempt charges, and thus uncertainty sometimes exists about the differences between types of contempt. Generally, contempt proceedings are classified as civil or criminal.
The BASL should specify what it considers as the undue and unwarranted attacks on the law enforcement authorities, and the AG’s Department
Civil, generally involves the failure to execute an act that is ordered by a court and Criminal contempt involves actions that assaults the decorum of the court or impairs the capability of the court to conduct its work. A civil contempt generally is a violation of the rights of one person, whereas a criminal contempt is a crime against society. Criminal contempt is punitive. Indirect contempt usually occurs outside the presence of the court, but with the intention to obstruct, belittle, mock, degrade or interrupt, the court and its proceedings. [Like what our Mannar man, a minister under Rajapaksa did by instigating his supporters to hurl stones at the Court house when the respected Judicial officer refuted him. This man now holds an ‘honourable’ ministerial portfolio in the ‘Yahapalana’ Cabinet.
As reported by this paper:
“…Ruling that Perpetual Treasuries Chairman Arjun Aloysius cannot be compelled to testify before it, the Presidential Commission of Inquiry (PCoI) into the bond issue informed his Counsel Gamini Marapana PC to notify the commission regarding the willingness of his client to give evidence by tomorrow. The PCoI stressed on Sep 12, that it required Arjun Aloysius to testify, but considering the rule of law concept and the established law, an accused cannot be compelled to give evidence, the Commission was of the view that Aloysius could not be compelled to give evidence if he was unwilling to do so.
Based on the evidence before the Commission so far, the PCoI mentioned in the order that it requires Aloysius to give evidence with regard to important matters. The Commission, citing various precedents and established laws also stated that Aloysius’s evidence as a witness who possessed knowledge on certain matters was crucial to the Commission’s mandate.”- Daily Mirror -13 Sep.
Money and corruption are ruining the land, crooked politicians betray the working man, pocketing the profits and treating us like sheep, and we’re tired of hearing promises that we know they’ll never keep.”–Ray Davies
NMSJ sans Ven. Maduluvawe Sobitha Thera
The untimely demise of Ven. Maduluvawe Sobitha Thera, has made the ‘National Movement forSocial Justice’[NMSJ] ‘a ship without a rudder’, a weak entity which is wandering without a direction or control:it is no longer likely to play the role of foremost pressure group formed under the dynamic head priest of Kotte Naga Vihara who spear-headed the movement in toppling the Corrupt autocratic rule of the Rajapaksa family on January 8. The once powerful activist’s ensemble in the recent past has suffered a series of tragic downfalls with many abandoning the sinking ship; especially by individuals representing the artistes.
This compelled the organisers to invite a corrupt unprincipled Minister to address a poorly attended ‘mass rally’, an event held recently at Viharamadevi Park’s amphitheatre. Accusations by disgruntled men in opposition that two vociferous leaders of NMSJ have been frequenting Temple Trees though cannot be taken seriously, it is obvious that they are no longer capable of making a significant impact in the present political playing field. The late prelate understood the origin as a fault in the structure and the need to rectify the mistake by amending the Constitution. He undertook to pioneer the pressure group fearlessly, heralding a new following culture. The relatively weak organisation; and other disappointingly constituted Civil Society elements, NGOs and numerous hastily assembled mushroom groups that came together with the prelate three years ago in defying the Regime that was leading to authoritarian trends are today, except for a few of them like CIMOGG are headless and are wandering aimlessly.
BASL to the fore
There is a clarion call by the men who courageously stood by Ven. Sobitha to see this through as an everlasting monument to the legendary leader. Who can fill the void created by his untimely demise - perhaps; it is the BASL that needs to answer the call: Good Governance, Rule of Law, Scrapping Executive Presidency and formulating a new constitution for effective devolution of power lies within their ‘jurisdiction’.
It is the people who enjoy universal franchise that give the government the democratic mandate to create law. If they behave in a contemptuous manner, it is the voter who is responsible. [Though a dozen of them rejected by voters shamelessly occupy positions, and some of them are the most vociferous ‘verbal d…’ category] The governing men and judiciary may be undemocratic, but it is the people who sit as jury and have the supreme democratic right to overrule them all and refused to be convicted. The electronic media today has become a safe haven for them to insult, abuse and slur each other, making news telecast filthy and disgusting to watch.
Duke of Gloucester (King Richard III)…to Lady Anne:-
“My tongue could never learn sweet smoothing word.
But now thy beauty is proposed my fee,
My proud heart sues, and prompts my tongue to speak.”
She looks scornfully at him:-
“Teach not thy lip such scorn, for it were made
For kissing, lady, not for such contempt.
If thy revengeful heart cannot forgive…”, - Shakespeare- Richard III;Act I;Scene II