Features
IS RANJAN RAMANAYAKE DISQUALIFIED?
Dr Nihal Jayawickrama
According to a newspaper report, the Attorney-General has advised the Secretary-General of Parliament that Ranjan Ramanayake’s seat in Parliament has fallen vacant following his “conviction and sentence” for contempt of court. According to the Attorney-General, Ramanayake was “convicted” by the Supreme Court “of the offence of contempt of court punishable under Article 105(3) of the Constitution and sentenced to a term of four years rigorous imprisonment” and is therefore not qualified to remain a Member of Parliament under Article 89(d) of the Constitution. In my view, the Attorney-General has misdirected himself on the law.
Article 105(3) states that
The Supreme Court and the Court of Appeal shall each be a superior court of record and shall have all the powers of such court including the power to punish for contempt of itself, whether committed in the court itself or elsewhere, with imprisonment or fine or both as the court may deem fit.
Article 89(d) states that:
No person shall be qualified to be an elector if he is subject to the following disqualification –
(d) if he is serving a sentence of imprisonment for a term not less than six months imposed after conviction by any court for an offence punishable with imprisonment for a term not less than two years or is under sentence of death.
Article 89(d), therefore, contains four elements, all of which should be satisfied before a person is disqualified from being an elector, and therefore from being elected as a Member of Parliament or from sitting and voting in Parliament. These are:
(a) an offence,
(b) punishable with imprisonment for a term not less than two years,
(c) conviction by a court, and
(d) be serving a sentence of imprisonment for a term not less than six months.
An offence
Article 105(3) does not create the offence of contempt; nor does it refer to contempt as an “offence”. It does not define the term “contempt”; nor does it set out what acts or omissions constitute contempt. What it does is state that the Supreme Court has “the power to punish for contempt of itself, whether committed in the court itself or elsewhere”. In Article 105(3), “contempt” is used in a generic sense. As Lord Diplock observed in Attorney-General v. Times Newspapers (1974), “Contempt of Court is a generic term descriptive of conduct in relation to particular proceedings in a court of law”.
On the other hand, Article 111C of the Constitution makes it an offence for any person to “interfere or attempt to interfere with the exercise or performance of the judicial powers or functions of any judge”. That is an offence punishable by the High Court, on conviction after trial, with imprisonment which may extend to one year or with fine, and disqualification from being an elector for a period not exceeding seven years. Similarly, the Judicature Act has conferred on every original court a special jurisdiction to punish with the prescribed penalties every “offence” of contempt of court committed in the presence of the court itself, and all “offences” which are committed in the course of any act or proceeding in such courts “and which are declared by any law for the time being in force to be punishable as contempt of court”. These “offences”, some of which are defined in the Civil and Criminal Procedure Codes, include the failure to answer interrogatories or to produce a document, or refuse to give evidence. Ramanayake was not charged under either of these laws.
Punishable with imprisonment for a term not less than two years
For Article 89(d) to be applicable, there has to be “an offence” created by law, which is punishable with imprisonment for a term not less than two years. Article 105(3) does not create any offence that is punishable “with imprisonment for a term not less than two years”. In fact, Article 105(3) does not specify any term of imprisonment or the quantum of a fine.
Conviction by a court
For a person to be “convicted”, there has to be an “offence” for which he is “charged”. Since Article 105(3) does not create any offence, no “charge” or “indictment” was served on Ramanayake. Instead, a “Rule” was read to the “Respondent” by the Registrar at the commencement of the proceedings, and in the penultimate paragraph of the judgment the Court states that “We affirm the Rule”. In the circumstances, the statement in the final paragraph of the judgment that “we convict him for the offence of contempt punishable under Article 105(3)” appears to have been made per incuriam.
Serving a sentence of imprisonment for a term not less than six months.
The sentence imposed on Ramanayake was four years rigorous imprisonment. That sentence satisfies the requirement of Article 89(d), but only if the other requirements of that Article described above have also been met. Since they have not, the sentence imposed on him is irrelevant in determining whether or not Article 89(d) is applicable to Ramanayake.
The International Covenant on Civil and Political Rights (ICCPR)
The Government of Sri Lanka has ratified the ICCPR which is the principal multilateral global treaty on human rights. Accordingly, Sri Lanka is bound by the provisions of that treaty. Sri Lanka has also ratified the Optional Protocol to the ICCPR. By so doing, Sri Lanka has recognized the competence of the Human Rights Committee, consisting of 18 distinguished international jurists, to receive and consider a “communication” from any citizen who claims to be a victim of a violation of a right defined in the ICCPR. Did the Attorney-General draw the attention of the Court to the decision of the Human Rights Committee in the 2008 case of S.B. Dissanayake v. Sri Lanka which concerned sentencing in contempt matters?
S.B. Dissanayake v. Sri Lanka
In 2003, the Supreme Court found S.B. Dissanayake, MP and Minister, guilty of contempt of court for having stated at a public meeting that he “would not accept any shameful decision [‘balu thinduwak’]the Court gives”. He was referring to an advisory opinion which President Kumaratunge had sought from the Supreme Court on a constitutional issue. He was sentenced to two years rigorous imprisonment by Chief Justice Sarath Silva. He availed himself of the right to submit a communication under the ICCPR.
In that case, in which I represented Dissanayake, the Human Rights Committee held that the State was responsible for a violation of the ICCPR even if committed by the judiciary. Accordingly, it described the sentence of two year’s rigorous imprisonment for contempt of court as a “draconian penalty” which constituted “arbitrary deprivation of liberty”, prohibited by Article 9(1) of the ICCPR (The right to liberty). It held that the sentence also violated Article 19(1) of the ICCPR as being disproportionate to any legitimate aim under that Article (Right to freedom of expression).
On the application of Article 89(d) of the Constitution, the Human Rights Committee observed that “if a conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and sentence”. Accordingly, if Dissanayake was denied his right to be elected or to vote for a period of seven years, Sri Lanka would violate Article 25(b) of the ICCPR (The right to take part in the conduct of public affairs).
The Sri Lanka Government was ordered to pay compensation to Dissanayake, and restore his right to vote and to be elected. The Government was also requested to make such changes to the law and practice relating to contempt of court, so as to avoid similar violations of the ICCPR in the future. Over a decade later, a law on contempt of court is yet to be enacted by Parliament.
The Law on Contempt of Court
In 1983, in Hewamanne v. Manik de Silva, five Judges of the Supreme Court examined very exhaustively the law on contempt of court. They concluded that the substantive law applicable in Sri Lanka was the English common law of contempt. In England, at that time, while the law relating to “scandalizing the court” was still in force, it had not been applied since 1931. Mr Justice Ranasinghe observed thus:
The modern approach in regard to this category of contempt of court seems to be heavily in favour of the courts being content to leave to public opinion attacks or comments derogatory or scandalous to them and to rely on their conduct itself to be their own vindication.
This as a view shared by Lord Salmon who, in 1970, observed that to claim that “scandalizing the court” is a form of contempt of court was both unfortunate and misleading.
“This archaic description of these proceedings as ‘contempt of court’ suggests that they are designed to buttress the dignity of the judges and to protect them from insult. Nothing could be further from the truth. No such protection is needed. The sole purpose of proceedings for contempt is to give our courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented.”
The English law has since been amended. The Crime and Courts Act of 2013 abolished “scandalizing the court” as a form of contempt. What the House of Lords once described as “a supposed affront to the dignity of the court” is no longer punishable as contempt of court. In the Constitutional Court of South Africa, Justice Sachs observed that the words “scandalizing” and “disrepute” belonged to an archaic vocabulary:
“They evoke another age with other values. . . The problem is not simply that the nomenclature is quaint but that it can be misleading. The heart of the offence lies not in the outrage to the sensibilities of the judicial officers concerned but the impact that the utterance is likely to have on the administration of justice. . . Indeed, bruising criticism could in many circumstances lead to the improvement in the administration of justice. Conversely, the chilling effect of fear of prosecution for criticizing the courts might be conducive to its deterioration. . . Criticism, however robust and painful, is as necessary as ever.”
Under English law, contempt committed “in the court itself” includes such acts as disobeying or ignoring a court order; shouting in court; or refusing to answer a question put to a witness by the court. Contempt committed “elsewhere” includes publicly commenting on a pending case by declaring on social media that a person is guilty or innocent; referring to a person’s previous convictions; naming someone the judge has allowed to be anonymous; naming victims, witnesses and offenders under the age of 18; naming sex crime victims; or sharing any evidence or facts about a case that the judge has said cannot be made public.
Conclusion
Since the Attorney-General appeared before the Supreme Court presumably in the capacity of amicus curiae, was it not his duty to have brought to the attention of the Court, the relevant decision of the Human Rights Committee, and also the recent changes in the English law of contempt that continue to be applicable to Sri Lanka in the absence of a substantive law of our own? Was the Attorney-General unaware that “scandalizing the court” was no longer an offence under English law? Meanwhile, is it the Attorney-General who decides whether a duly elected Member of Parliament is disqualified from sitting and voting in Parliament?
Features
Trump’s tariffs, AKD’s gazette and Sri Lanka’s diplomatic slumber
“We are rather respectable in Colombo. We go to bed fairly early, and we remain there till morning. “
According to Sri Lanka’s diplomatic folklore, the late S.W. R. D. Bandaranaike uttered these words while explaining the reasons for Sri Lanka’s abstention on the UN resolution condemning the Soviet invasion of Hungary. Apparently, SWRD’s foreign ministry officials were asleep at home when the diplomatic cable seeking instructions was received from New York. In those days, there were no cell phones, Internet, or even fax or telex machines. The diplomatic cables were sent through post offices. Decoding them was a slow and time-consuming process. Thus, the government could not provide appropriate instructions to our mission in New York in time, and the Sri Lankan delegation abstained on that sensitive UN vote.
Sri Lanka’s Absence from Section 301 Consultations
But then, how does one explain Sri Lanka’s absence from the crucial bilateral consultation held in Washington by the Office of the United States Trade Representative (USTR) during March-April on “Forced Labour” under the Section 301 of the US Trade Act of 1974? Didn’t our foreign and trade ministries send appropriate instructions to Washington in time? Even if the instructions from the foreign ministry were transmitted to our embassy in Washington by pigeon carriers, there was enough time for Sri Lanka to participate in those meetings.
In March, the USTR initiated these 301 investigations on 60 trading partners, and invited all of them for confidential consultations. Out of the 60, 46 participated in these consultations. Sri Lanka was not one of them. Other countries that didn’t participate in these consultations included China, Russia, and Venezuela! In addition to that, the Section 301 Committee conducted a public hearing with interested parties on April 28 and 29. Washington-based diplomats, representatives from few trade ministries as well as representatives from many foreign trade associations and chambers participated in these hearings. Sri Lanka was once again conspicuously absent.
As a result, when the USTR published the proposed forced labour tariffs on June 2nd, Sri Lanka ended up with a 12.5% duty. Pakistani and Indonesian diplomats participated in these consultations and took appropriate follow-up measures, and managed to enter the 10% duty category. As even a threat of a modest tariff hike could disrupt supply chains and reduce competitiveness, particularly in an industry such as garments, I discussed this issue on 15 June and underscored the importance of Sri Lanka’s participation at the next hearing, which was scheduled to be held from July 7th .
Awakening from Diplomatic Slumber and AKD’s Gazette
Fortunately, Sri Lanka finally awoke from weeks of diplomatic slumber, and Ambassador Mahinda Samarasinghe participated in the public hearing on 9 July, and promised, “…. · We have agreed to the text in our negotiations with the USTR on forced labour, …. The gazette as we speak is being printed and I’m getting the gazette tomorrow morning, and the gazette will be shared with USTR as I get it“.
As promised, President Anura Kumara Dissanayake issued a gazette on 10 July banning the imports of goods produced by forced labour. These new regulations are very similar to what Pakistan and Indonesia enacted in April, after their consultations with USTR in March. Why couldn’t we do it in April? Why did we wait till the very last minute?
Challenges ahead
“War is too important to be left to generals alone,” is a famous saying attributed to former French Premier Georges Clemenceau. Similarly, monitoring our main markets is too important to be left to diplomats alone. The United States is the largest single-country market for Sri Lanka. Therefore, Sri Lankan trade chambers and associations should become more proactive in these markets and participate in these events. For example, the chairman of the Pakistani apparel exporters association participated in the April hearings. Similarly, representatives from the Indian Agricultural and Processed Food Products Export Development Authority, the Federation of Indian Chambers of Commerce and Industry, the Confederation of Indian Industry, and Reliance Industries also participated in July hearings. At an event where each speaker is given only five minutes (strictly enforced), having a number of speakers from a country is an advantage. The presence of industry representatives in these kinds of events also help them understand the market dynamics and the future challenges. This is important, particularly because there will be many more challenges with Trump’s tariffs.
With the gazette issued on 10 July, Sri Lanka has imposed a prohibition on the importation of goods produced with forced labour. Now, the challenge will be to effectively enforce the prohibition. And what are the goods produced with forced labour? The USTR list only focuses on aluminum, cotton, electronics, lithium-ion batteries, rice, and tobacco. However, according to the U.S. Department of Labour, the list is much longer. Hence, this list may change continuously during the next two years and tariffs may fluctuate once again.
So, this is definitely not the time to slumber.
(The writer, a retired public servant, can be reached at senadhiragomi@gmail.com)
by Gomi Senadhira ✍️
Features
Tales of Mystery and Suspense 10 Casino for Sale
After the overwhelming grotesquerie of J K Rowling’s latest Cormoran Strike novel (written, I should have noted, as the others were, under the pseudonym Robert Galbraith), I thought I should return to the world of fun, and also a much shorter description since this thriller moves quickly without the layers of detail that Rowling engages in.
I then move to the second comic thriller by Caryl Brahms and S J Simon. This, their second story to feature Vladimir Stroganoff and Adam Quill, was Casino for Sale, as lunatic a romp as the first, though without the emphasis on the ballet that characterized A Bullet in the Ballet.
This one begins with the impresario Stroganoff buying a casino cheap from Baron Sam de Rabinovich, only to find that it was a rundown place, not the grand casino of La Bazouche, a resort on the Frenc+h Riviera, as he had initially thought. The grand one belonged to Lord Buttonhooke, and Stroganoff could not compete, until he thought of bringing the Ballet Stroganoff to the casino – which of course leads to Buttonhooke deciding to have ballet performances in his Casino too.
Stroganoff invites Quill to visit him, which Quill decides to do since he has left Scotland Yard, having come into a legacy. No one believes this, and he has to face questions as to what he did to have been sacked, with sympathy for having been found out.
The day he arrives in La Bazouche there is a murder, of a vitriolic critic called Citrolo, in Stroganoff’s office. He had been going to write a damning review of the opening night of the ballet and Stroganoff, when he realizes Citrolo cannot be swayed, drugs him and dictates the review himself to the papers. He leaves Citrolo sleeping and finds him shot the next morning, whereupon he decides to muddy the waters and leave a suicide note and lots of other murder weapons. So much overkill, as it were, of course ensures that he is arrested.
But the excitable French detective who makes the arrest follows up his suggestion that Buttonhooke was also involved, and so the two casino owners find themselves in cells next door to each other, with the detective Gustave quite happy to provide creature comforts for a fee.
Quill decides he must investigate, and finds Gustave most cooperative, since he has a laid back attitude to work. So it is Quill that finds a notebook which makes it clear Citrolo is an accomplished blackmailer, and that there are lots of possible murderers, including Stroganoff’s croupier, who was crooked, Rabinovich, who was now working for Buttonhooke, a confidence trickster called Kurt Kukumber, whose prospectus for a dud gold mine was found in the office and Prince Alexis Artishok who was engaged in a deal to buy diamonds from the ballerina Dyra Dyrakova.
Stroganoff had been trying to get Dyrakova to dance for him, but having done so previously she had refused. But then to Stroganoff’s chagrin she agreed to dance for Buttonhooke. The clearly crooked Artishok had told Buttonhooke’s mistress Sadie Souse, who was not very bright, that Dyrakova possessed diamonds she was willing to sell cheap, and Sadie was determined to have them.
Quill meanwhile finds out that there was a secret passage to Stroganoff’s office, the obvious solution to what had begun as a locked room mystery, and that this was known by almost everyone apart from Stroganoff himself. And then Rabinovich is murdered, just after Gustave had released his two original suspects, leading him to blame Quill for having insisted on that and thus allowing them to kill again.
Soon afterwards Dyrakova arrives, and the town is full of posters announcing that she will appear in the casinos, elaborate posters for either one, since Stroganoff is determined that she will dance for him, and if she does not come willingly, he has devised a scheme to make her do so unwillingly. So, though Buttonhooke has her taken off to his yacht immediately she arrives at the station, Quill along with Arenskaya gets her into a launch and to Stroganoff’s casino, where she performs to tumultuous applause, not knowing for whom she is dancing.
When Quill asked her about the diamonds, she said she had sold them long ago, and that gave Quill the solution to the mystery. Rabinovich had known about this, and Artishok had killed him to prevent Sadie learning it from him, he had killed Citrolo who had recognized him for an accomplished card sharper, not a Russian prince at all. But before he is arrested, he gets away in a boat, and the police launch that pursues him is on the point of catching him up when it runs out of petrol.
Again, lots of excitement, and entertaining references – Gustave grows marrows – and if not quite as brilliant as its predecessor, Casino was certainly a delightful read.
Features
The challenge of being positive about SAARC
It was a few years back that a former President of Sri Lanka took it on himself to pronounce SAARC ‘dead’. Since then there have been other sections of Sri Lankan opinion that have joined the critics of SAARC and taken the solemn stance that SAARC has indeed died what may be called a natural death.
Their fatalism is understandable. SAARC has failed to meet at heads of government or state level for the past several years to take the SAARC process notably forward. Regional cooperation has more or less been only an appealing idea. No substantive concrete projects have taken off to make the idea a hard reality. ‘Inner paralysis’ seems to be SAARC’s lot. Hence the fatalism in these circles.
However, being one of the worst cash-strapped regions of the world and a teemingly populated one with people virtually left to their devices, what choices do the ‘SAARC Eight’ have other than to try their best to band together and continue with their cooperation efforts, however small they may be?
There is no escaping the mounting debt trap for many of these countries and bankrupt Sri Lanka is a glaring example, but ‘throwing in the towel’ and abandoning themselves entirely to the diktats of the strongest economies and their agencies will prove a ‘living death’ for many countries in the SAARC fold.
The gains may be meagre but giving-up on SAARC cooperation in full would prove self-defeating for the organization and South Asia. Right now, the collective intention ought to be to salvage what the region could from the tenuous cooperative efforts. Moreover, such initiatives could go some distance to generate a degree of goodwill among the Eight and help in sustaining a dialogue process.
Given this backdrop it proved ‘a stich in time’ for the Regional Centre for Strategic Studies (RCSS), Colombo, to recently host the SAARC Secretary General Ambassador Md. Golam Sarwar to a round table discussion on the unifying potential of SAARC and its future possibilities, besides other related issue areas.
Held on June 24th and moderated by RCSS Executive Director and former ambassador Ravinatha Aryasinha, the forum brought together a vibrant, wide ranging audience comprising academicians, diplomats, senior public servants, civil society activists and many others. Following the presentation by Ambassador Golam Sarwar titled, ‘Reigniting SAARC: Achievements, Challenges and the Way Ahead’, a lively Q&A followed.
The above forum could be described as an act of lighting the proverbial ‘candle’ rather than ‘cursing the darkness.’ It surely is a ‘darkness’ that could be seen as daunting considering that the region’s pivotal powers, India and Pakistan, are failing to act in a spirit of accord but are engaged in bitter finger-pointing on a number of questions of vital importance to SAARC.
On the other hand, what is the rest of the region doing to bring the above sides together? It is disappointing that to date the rest of SAARC has failed to launch a major diplomatic drive to bring peace between the feuding regional heavyweights. It needs to act without delay and establish its earnestness and this effort would need to prove SAARC’s staying power in the unfolding months and even years.
In assessing SAARC’s seeming failure local opinion in particular has failed to factor in what could be described as weak leadership. Since Sheikh Mujibur Rahman of Bangladesh, the founding father of SAARC, the region has failed to produce a visionary leader who could advance the SAARC cause with charisma and drive.
Among other reasons, weak leadership accounts considerably for the faltering and stuttering status, as it were, of SAARC. Badly needed are leaders who could go the extra mile, think less of narrow national interests and work diligently towards the collective well being of the region but SAARC’s millions of ordinary people have been made to wait in vain for leaders of such stature. Instead, they have been burdened with politicians who seem to be relishing the apparently moribund state of SAARC.
Looking back, it could be said that it was the dynamic leadership factor that led to the launching of the Non-Aligned Movement and for its sustenance for a few decades. True, it could be seen in some quarters that NAM is no more, but as in the case of SAARC, the former too has been unfortunate to be burdened over the years with politicians who lack the vision and drive to unflaggingly advance the fortunes of the South. NAM and SAARC lack the dynamism and vision of leaders of the stature of Jawaharlal Nehru, for example, to give them the required guidance and intellectual depth.
The reasons are complex for there not being among us currently political leaders with the vision and the steadfast commitment to advance the legitimate interests of the South. However, it could be stated with conviction that the majority of Southern leaders have too easily caved in to the demands of the global North and its financial agencies.
These leaders have failed to see, for instance, that the largely market economy oriented Northern governments would not view with favour a centrist economic model that attaches priority to the interests of the dis-empowered publics of the South. This realization ought to have dawned on the current government in Sri Lanka, for instance, some while ago but it has no choice but to abide by IMF dictates since economic survival at present is unthinkable without the latter’s succour.
Accordingly for SAARC this should be the time for some soul-searching. Priority needs to be attached to ending the feuding between India and Pakistan since at present the material fortunes of the region hinge largely on these regional giants giving peaceful relations among them a try. This is no easy challenge to meet but some daring, visionary diplomacy needs to take hold among the rest of SAARC.
There is some sense in SAARC bringing the peoples of the region together through programs that address their best collective interests. A meeting of minds among SAARC nations could enable SAARC and its agencies to build a region-wide people’s movement for progressive political and economic change that could in turn lead to the region’s political leaders sensitizing themselves more to the neglected needs of their publics.
However, the time is ‘now’ for the initiation of these progressive changes and the voice of SAARC well wishers would need to drown out those of their critics.
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