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The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,
Meeting on 22 July 2008,
Having concluded its consideration of communication No. 1373/2005, submitted
to the Human Rights Committee on behalf of Dissanayake, Mudiyanselage
Sumanaweera Banda under the Optional Protocol to the International Covenant
on Civil and Political Rights,
Having taken into account all written information made available to it by
the author of the communication, and the State party,
Adopts the following:
VIEWS UNDER ARTICLE 5, PARAGRAPH 4, OF THE OPTIONAL PROTOCOL
1.1 The author of the communication is Mr. D.M. Dissanayake, a Sri Lankan
citizen, residing in Sri Lanka. He claims to be a victim of violations by
the State party of article 7; article 8, paragraph 3(b); article 9,
paragraph 1; article 14, paragraphs 1, 2, 3 (a), (e) and (g), and 5; article
15, paragraph 1; article 19, paragraph 3; article 25; and article 26 of the
International Covenant on Civil and Political Rights. He is represented by
counsel, Mr. Nihal Jayawickrama.
1.2 The author requested interim measures on the basis that he would suffer
irreparable damage if required to serve his entire sentence of two years of
rigorous imprisonment. He suggested that interim measures might include a
request that the author be granted "respite from the execution of the
sentence of hard labour". On 17 March 2005, the Special Rapporteur denied
his request for interim measures on the ground that working in a print shop
did not appear to come within the terms of article 8, paragraph 3 (b).
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 In February 1989, the author, a member of the Sri Lankan Freedom Party (SLFP),
was elected to parliament. In 1994 and October 2000, he was re-elected and
appointed Cabinet Minister in the Peoples Alliance (PA), the Government of
Prime Minister (later President) Chandrika Kumaratunge, which was a
coalition of the SLFP with several smaller parties. In 2001, differences of
opinion arose within the government on a number of political issues. On 9
October 2001, the author and seven other members of the SLFP joined the
opposition, the United National Party (UNP). On 5 December 2001, at the
general election, the author was elected to Parliament on the National List
of the UNP, which formed a coalition government. As the PA was now in the
minority in Parliament, the President Kumaratunge, who remained leader of
that party, was compelled to appoint the leader of the UNF (comprising the
UNP and the Ceylon Workers Congress (CWC)), Ranil Wickremasinghe as Prime
Minister. The President, appointed the Cabinet proposed by the new Prime
Minister, and the author was appointed Minister of Agriculture.
2.2 According to the author, the peculiar structure of government made good
governance difficult. In 2003, the President referred to the Chief Justice
for an opinion on questions relating to the exercise of defence powers
between the President and the Minister of Defence. On 5 November 2003, a
news release from the Presidential Secretariat announced the opinion of the
Supreme Court, to the effect that "the plenary executive power including the
defence of Sri Lanka is vested and reposed with the President", and that
"the said power vested in the President relating to the defence of Sri Lanka
under the Constitution includes the control of the armed forces as
commander-in-chief of the forces". On 7 February 2004, the President
dissolved Parliament and set a date for the next general election. Following
this election on 2 April 2004, the United Peoples Freedom Alliance (UPFA)
(which comprised of the SLFP and the JVP) led by the President formed a
minority government in Parliament. The author, who had stood for the first
time as a member of the UNP, was re-elected.
2.3 On 3 November 2003, pursuant to the President's request to the Chief
Justice for an opinion on the exercise of defence powers between the
President and the Minister of Defence, the author gave a speech during a
public meeting in which he was reported in the press as saying that he and
like-minded members of Parliament 'would not accept any shameful decision
the Court gives'. He was charged under Article 105 (3) of the Constitution
with contempt of court [FN1]. He was served a "Rule" [FN2], dated 7 April
2004, requiring him to show "why he should not be punished under article
105(3) of the Constitution" for the offence of contempt of the Supreme
Court. He was tried before the Supreme Court on 7 May and 14 September 2004.
The Chief Justice presided over the case, despite the author's objection
[FN3].
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[FN1] According to Article 105 (3), "The Supreme Court of the Republic of
Sri Lanka and the Court of Appeal of the Republic of Sri Lanka 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."
[FN2] The author provides no further details on the definition of a "Rule".
[FN3] According to the author, his lawyer met with the Chief Justice in his
chambers prior to the hearing informing him that he objected to his
participation in the hearing and asking him to recuse himself. The Chief
Justice refused to do so.
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2.4 On 7 May 2004, at the author's first appearance in court, the Rule was
read out and the Chief Justice asked him whether he had made the speech
attributed to him therein. On the second occasion, his counsel was asked
whether he admitted to having made portions of the speech, which on the
previous occasion he had denied or stated he did not recall having made. The
Chief Justice then requested officials of the television station to play
back the recording of what was called a "copy of the original". On the
author's instructions, counsel informed the court that for the purpose of
the proceedings, he would admit having made the entire statement attributed
to him. At this point, the Chief Justice declared that all that was left
were questions of a legal nature, namely, whether the statement admitted by
him amounted to contempt of court; and if so, how the court should deal with
it.
2.5 The author states that no witnesses were called to give evidence.
Neither the persons who made the original complaint nor the person/s who
allegedly recorded the speech were called as witnesses or were submitted for
cross-examination. The original video tape was not produced in evidence. The
procedure was inquisitorial in nature and contrary to the provisions of
section 101 of the Evidence Ordinance which requires that, "[w]hoever
desires any court to give judgement as to any legal right or liability
dependent on the existence of facts which he assets, must prove that those
facts exist", and Article 13 (5) of the Constitution which states that
"every person shall be presumed innocent until he is proved guilty".
2.6 On 7 December 2004, the Court found the author guilty of contempt of
court and sentenced him to two years of "rigorous imprisonment". The author
had no right of appeal from the Supreme Court. The judgement refers to a
charge of contempt against the author in 2000 for which he was given a
warning and admonition by the Supreme Court, but was not convicted. In the
judgement, the Chief Justice commented adversely on the author's conduct,
due to his failure to admit at the outset that he had made the full
statement in question and stated that he had displayed "a lack of candour".
The author began serving his sentence on the same day in the Welikade Prison
and was assigned to work in its printing room. According to the author, the
Supreme Court did not have the power to sentence him to hard labour under
Sri Lankan law. According to section 2 of the Interpretation Ordinance,
which applies to the Constitution, "(x) rigorous imprisonment, "simple
imprisonment", and "imprisonment of either imprisonment description" shall
have the same meaning as in the Penal Code, and "imprisonment" shall mean
simple imprisonment [FN4] .Shortly after the author's committal to prison,
he was disqualified from being an elector and Member of Parliament pursuant
to article 66(d) of the Constitution. Such a disqualification continues for
a period of seven years commencing from the date on which the prisoner has
served his prison sentence; in the author's case for a period of nine years
in all.
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[FN4] The Penal Code of Sri Lanka (s. 30) states that imprisonment is of two
descriptions: rigorous, that is, with hard labour; and simple. The Supreme
Court purported to act under Article 105 (3) of the Constitution which
refers to "imprisonment or fine".
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2.7 According to the author, the composition of the Supreme Court which
heard his case, and included the Chief Justice, was neither impartial nor
independent. He argues that the Chief Justice is a personal friend of the
President, and that she appointed him as Chief Justice, superseding five
more senior judges: he had only been a judge for four months. He refers to a
statement made by the former UN Special Rapporteur on the Independence of
Judges and Lawyers, upon the appointment of the Chief Justice, in which he
expressed his concern at the haste of his appointment, particularly in light
of the fact that there were at that time two petitions on charges of
corruption pending against him. According to the author, every "politically
sensitive" case in which the former President, her government or party
appear to have an interest, including the author's case, has been listed
before the Chief Justice, sitting more often than not with the same group of
judges of the Supreme Court, many of whom had served under him when he was
the Attorney General. The author states that he is unable to cite a
judgement of the Chief Justice in a "politically sensitive" case which was
favourable to the author's party (UNP). In addition, he states that a
parliamentary motion calling for his removal, which was submitted to the
Speaker by the UNP in November 2003, was signed by the author. The Chief
Justice was aware of this motion and of the author's co-signature.
2.8 According to the author, the charges against him were politically
motivated. He states that the Chief Justice was biased against him. In this
regard, he refers to the fact that on 10 March 2004, at a crucial stage in
the general election, the Chief Justice informed the press that the judges
of the Supreme Court were examining a speech made by the author with a view
to charging him for contempt. He reminded the press that this was not the
first occasion the Supreme Court would be considering such a charge against
the author. On 16 March 2004, a newspaper stated that the author had been
charged with contempt. According to the author, the Rule was not issued by
the Supreme Court until 7 April, after the election, and the Chief Justice
took no steps to contradict these reports. In July 2004, the author submits
that newspaper reports alleged that the Chief Justice had been caught in a
compromising position with a woman in a car park. The Chief Justice publicly
dismissed the allegation, stating that it was part of a campaign to
'discredit him and was related to certain cases pending before the Court'.
The author states that this was a clear reference to him, as his case was
the only politically sensitive case pending before the Supreme Court at that
time.
THE COMPLAINT
3.1 The author claims that his sentence was disproportionate to his alleged
offence, and refers to other decisions of the Supreme Court dealing with
defamation in which lighter penalties were handed down for more serious
contempt [FN5]. He submits that a sentence of two years rigorous
imprisonment imposed upon him, being the first reported instance in over a
hundred years when the Supreme Court imposed a sentence of such excessive
length and rigour, is a grossly disproportionate sentence, and amounts to
cruel, inhuman and degrading punishment, in violation of article 7.
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[FN5] According to the information provided, the only other time the Supreme
Court issued a sentence of "rigorous imprisonment" was in the case of
Fernando, where the convict was sentenced to one year of rigorous
imprisonment. This communication no. 1189/2003 was considered by the
Committee, on 31 March 2005, and it found a violation of article 9,
paragraph 1, for arbitrary deprivation of liberty.
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3.2 The author claims that, as he was required to perform hard labour in
prison in pursuance of a sentence which the court was not competent in law
to impose (see para. 2.6 above), he was required to perform forced or
compulsory labour in violation of article 8, paragraph 3, of the Covenant.
He claims a violation of article 14, paragraph 1, by reason of the Chief
Justice's involvement in his case who, he claims, was neither impartial nor
independent.
3.3 The author claims a violation of article 14, paragraph 2, as he was not
presumed innocent and the burden of proof was placed on him rather than the
prosecution. He refers to the facts set out in paragraph 2.4 and 2.5 above.
He submits that while trial by summary procedure may be permissible where
the alleged contempt has been committed "in the face of the court", it is
wholly inappropriate where the charge is based, not on the judge's
observations, but on a petition submitted by a individual in respect of an
alleged offence which had taken place several months previously, to which
the petitioner was not a party, with which he or she was not concerned, and
of which no member of the court had any knowledge until the petition was
received. Where such an offence is tried summarily, the burden of proof is
imposed on the accused to establish that the alleged act was not committed
by him [FN6].
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[FN6] In support of his view, the author refers to a judgement of the
Constitutional Court of South Africa, in the case of State v. Mamabolo
[2002] 1 LRC 32.
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3.4 The author claims a violation of article 14, paragraph 3 (a), as he was
not informed of the nature and cause of charges against him. The Rule which
was served upon him did not refer to any particular sentence or sentences of
his statement (of around twenty sentences in all), which was/were suppose to
have amounted to contempt of court. The Rule did not indicate the specific
nature of the contempt with which he was charged and he was not informed in
court either of its specific nature. He claims a violation of article 14,
paragraph 3 (e), as no witnesses were called to testify against him, and no
witnesses were tendered for cross-examination by counsel appearing for the
author. He claims a violation of article 14, paragraph 3 (g), due to the
manner in which he was questioned by the Chief Justice on the contents of
the speech he was alleged to have made, the coercion which he was subjected
to by the Chief Justice, and the adverse inferences which the Chief Justice
drew from his reluctance to provide evidence against himself (para. 2.4 and
2.6).
3.5 The author claims that because he was tried at first instance in the
Supreme Court, rather than the High Court, he had no right to appeal against
his conviction and sentence, in violation of his rights under article 14,
paragraph 5. He argues that if there had been an appellate tribunal
competent to review the judgement, there were serious misdirections of law
and fact upon which he would have based an appeal. He sets out these
misdirections in detail.
3.6 The author claims a violation of article 15, paragraph 1, as he was
convicted of a criminal offence which did not constitute a criminal offence
under law, and was sentenced to two years rigorous imprisonment when no
finite sentence is prescribed by law. He invokes Article 105 (3) of the
Constitution, upon which he was convicted for the offence of contempt of
court. He refers to the article itself which he argues does not create the
offence of "contempt", nor defines the term, nor sets out what acts or
omissions would constitute it. It merely declares that among the powers of
the Supreme Court is the, "power to punish for contempt of itself, whether
committed in the court or elsewhere". He also argues that with reference to
U.K. jurisprudence, it would appear that the type of contempt he was
punished with was that of "scandalising the court", which is not an act
declared to be an offence under any law of the State party. In addition, he
argues that in light of the fact that Article 111C(2) of the Constitution
has prescribed punishment of up to one year imprisonment for the substantive
offence of interference with the judiciary, it would be irrational to
suggest that the words "the power to punish for contempt with imprisonment
or fine", means that the court's powers to impose a prison sentence is
unlimited.
3.7 The author claims that his right to freedom of expression under article
19 has been violated, as the restrictions imposed on his right to freedom of
expression through the application of the contempt of court offence in this
instance did not satisfy the 'necessity' requirement in article 19,
paragraph 3. According to the author, the portion of his speech relating to
the President's request was political in nature, related to a subject which
was topical, and was couched in language that was appropriate to the
occasion. He claims that his expulsion from Parliament, his exclusion for a
period of nine years from participating in the conduct of public affairs,
and particularly from performing his functions as National Organiser of the
principal parliamentary opposition party in a year in which a presidential
election is due to be held, and his disqualification for a period of nine
years from voting or standing for election was grossly disproportionate, and
not justifiable by reference to reasonable and objective criteria, thus
violating his rights under article 25.
3.8 Finally, the author claims a violation of article 26, for failure of the
Supreme Court to apply the law equally or to provide equal protection of the
law without discrimination. He argues that the Supreme Court failed to take
any action against either the Independent Television Network or the Sri
Lankan Rupavahini Corporation, both of which had broadcast his speech.
THE STATE PARTY'S SUBMISSION ON ADMISSIBILITY AND MERITS
4.1 On 14 October 2005, the State party contested the author's claims. On
the facts, it states that the Supreme Court, in addition to its original and
appellate jurisdiction, has a consultative jurisdiction whereby the
President may obtain the opinion of the Court on a question of law or fact
which has arisen or is likely to arise and is of public importance. It
submits that at the time of making the statement in question the author was
a Cabinet Minister and not a civilian, which added to the impact of the
statement. It highlights the previous charge of contempt against the author,
when he admitted stating that, "they will close down Parliament and if
necessary close down courts to pass this Constitution" and "if State judges
do not agree with the implementation of the Constitution they could go
home". The author was a senior Cabinet Minister when he had made these
statements. In light of his apology and the fact that he had no previous
criminal record, he was not convicted. In the current case, the Supreme
Court specifically stated in its judgement that as its earlier leniency had
had no impact on the author's behaviour, a "deterrent punishment of two
years rigorous imprisonment" was appropriate. Considering these elements,
the State party submits that the cases cited by the author are irrelevant
and the sentence cannot be considered disproportionate. For these reasons,
the State party did not violate article 7.
4.2 As to the allegation under article 8, paragraph 3, and the author's
claim that according to the provisions of the Interpretation of Statutes
Ordinance the word "imprisonment" denotes only "simple imprisonment", the
State party submits that this Ordinance cannot be used to interpret the
Constitution but only Acts of Parliament. The Constitution may only be
interpreted by the Supreme Court, which has interpreted "imprisonment" to
mean either "rigorous" or "simple imprisonment". It also notes that article
8, paragraph 3 (a), should be read with article 8, paragraph 3 (b), which
states that the former paragraph should not be held to preclude the
performance of hard labour.
4.3 As to the claims under article 14, paragraph 1, the State party denies
the allegations against the Chief Justice and states that it will refrain
from commenting on statements made against him which are unsubstantiated. A
judgement of the Supreme Court may only be handed down by a panel of at
least three judges. In this case, it consisted of five judges who rendered a
unanimous finding on guilt and sentence. The author was represented by
senior counsel and the hearing was in public. He admitted having made the
statement, and it was left to the Supreme Court to consider whether the
statement was contemptuous in whole or in part. The author had used the
Sinhalese word "balu" in his statement to describe the Judges of the Supreme
Court; a word which means dog/s and is thus extremely derogatory.
4.4 As to the claims of a violation of article 14, paragraphs 2, 3 (e) and
(g), the State party submits that the author's admission that he had made
the statement in question meant that these provisions were not violated. Had
the author refuted having made the statement, the onus would then have been
on the prosecution to prove that such statement was in fact made. As to
paragraph 3 (e), having admitted making the statement, there was no
necessity for the prosecution to hear evidence of witnesses to prove that
the statement had indeed been made. As to paragraph 3 (g), the author's
admission could not be construed as having to testify against himself or to
confess guilt. The author and his counsel, having examined the evidence
available took a considered decision to admit the entire statement.
4.5 As to article 14, paragraph 3 (a), the State party submits that the
author was served with a document containing the relevant material long
before the commencement of the proceedings. He was served with the charges
beforehand and the statement was read out in open court in a language he
understood. He was represented and neither the author nor counsel indicated
that they failed to understand the nature of the charge. Counsel was given
the opportunity to view a video clip of the author making the statement in
question and to advise the author prior to admitting that he made the
statement.
4.6 The State party denies that neither article 15, paragraph 1, nor article
14, paragraph 5, were violated. It confirms that the Supreme Court decision
could not have been reviewed. Under Article 105 (3) of the Constitution it
is vested with the power, as a superior court of record, to punish for
contempt of itself whether committed within the court or elsewhere. It is
clear under this article that contempt whether committed within the court
itself or elsewhere is an offence. If it were not so then the power given to
the Supreme Court would be futile. Any other interpretation would be
unrealistic and unreasonable. Further, it submits that contempt could be
considered criminal, according to "the general principles of law recognised
by the community of nations (article 15, paragraph 2)."
4.7 On the article 19 claim, the State party submits that a restriction
preventing incidents of contempt of court is a reasonable restriction, which
is necessary to preserve the respect and reputation of the court, as well as
to preserve public order and morals. Chapter iii of the Sri Lankan
Constitution provides that the exercise of the right to freedom of
expression is subjected to restrictions as may be prescribed by law which
includes contempt of court. Article 89 (d) of the Constitution,
"disqualifies a person who is or had during the period of seven years
immediately preceding completed serving a sentence of imprisonment (by
whatever name) for a term not less than six months after conviction by any
court for an offence punishable with imprisonment for a term not less than
two years..." The State party argues that preventing a person convicted of
such a crime from being an elector or elected as a Member of Parliament
could not be construed as an unreasonable restriction for the purposes of
article 25 of the Covenant.
4.8 As to article 26, the State party submits that the contention that the
television stations and the person who made the contentious statement be
considered as equal is untenable. In addition, the author had already been
warned and admonished for a previous charge of contempt of court, and thus
cannot expect to be treated equally to a person who is brought before a
court for the first time.
4.9 The State party submits that it has no control over the decisions of a
competent court, nor can it give directions with regard to future judgements
of a court. Upon signing the Optional Protocol, it was never intended to
concede the competence of the Committee to express views on a judgement
given by a competent court in Sri Lanka. It denies that there was any
political or personal bias of the Chief justice towards the author.
AUTHOR'S COMMENTS ON STATE PARTY'S SUBMISSION
5. On 9 November 2005, the author reiterated his claims and submits that the
State party did not respond to many of his arguments. With regard to its
arguments on article 8, paragraph 3, he submits that the Interpretation
Ordinance explicitly states that it applies to the Constitution and the fact
that the Supreme Court is vested with the power to interpret the
Constitution does not mean that in exercising that power it can ignore the
explicit provisions of the Ordinance. As to the claim that the context of
the statement in question was to refer to judges of the Supreme Court as
"dogs", the author refers the Committee to the translation of the words in
question by the Supreme Court itself as "disgraceful decision". At no stage
during the proceedings did the Attorney General or the Court itself claim
that the author had referred to the Judges of the Supreme Court as "dogs".
With respect to the State party's reference to article 15, paragraph 2, of
the Covenant, the author submits that this provision was intended as a
confirmation of the principles applied by the war crimes tribunals
established after the Second World War.
AUTHOR'S SUPPLEMENTARY COMMENTS
6.1 On 31 March 2008, on instructions from the Special Rapporteur on New
Communications, the Secretariat requested the author to confirm whether a
claim of article 9, paragraph 1, was implicit in his complaint, and to
provide it with information on his release. On 6 April 2008, the author
confirms that a claim of a violation of article 9, paragraph 1, is implicit
in each of the violations claimed in his initial submission. He refers to
the Committee's Views in Fernando v. Sri Lanka [FN7], which were adopted
three weeks after the present communication was submitted to the Committee,
and in which the Committee found a violation of article 9, paragraph 1, for
the arbitrary deprivation of liberty of the author by an act of the
judiciary. The author also refers to the criteria by which the UN Working
Group on Arbitrary Detention determines whether a deprivation of liberty is
arbitrary - "when the complete or partial infringement of international
standards relating to a fair trial is of such gravity as to confer on the
deprivation of liberty, of whatever kind, an arbitrary character", and "when
such detention is the result of judicial proceedings consequent upon, or a
sentence arising from, the exercise by an individual of the right to freedom
of opinion and expression guaranteed by article 19 of the Covenant".
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[FN7] Communication No. 1189/2003, Views adopted on 31 March 2005,
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6.2 The author submits that, on 15 February 2006, the President remitted the
remainder of his sentence and he was released from prison, about six to
eight weeks ahead of the day on which he would ordinarily have been entitled
to be released. About two or three weeks before his release, the Speaker of
Parliament ruled that the author had forfeited his seat in Parliament to
which he had been elected for a six year term in April 2004, because he had
absented himself from parliament for a continuous period of three months.
The President did not grant a pardon (which he could have done under
paragraph 2 of article 34 of the Constitution) which would have removed the
disqualification to vote or seek election, which the author is subject to
for seven years from the completion of his prison sentence, i.e. until April
2013.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
7.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant. The Committee has ascertained, as required under article 5,
paragraph 2 (a), of the Optional Protocol, that the matter is not being
examined under another procedure of international investigation or
settlement.
7.2 As to the claims of violations of articles 7, 8, paragraph 3 (b), 15,
paragraph 1, and 26, of the Covenant, the Committee is of the view that
these claims have not been substantiated, for purposes of admissibility, and
that they are therefore inadmissible under article 2 of the Optional
Protocol.
7.3 As to the remaining claims of violations of the provisions of article
14; article 9, paragraph 1; article 19; and article 25(b), the Committee
considers these claims are sufficiently substantiated and finds no other bar
to their admissibility.
CONSIDERATION OF THE MERITS
8.1 The Human Rights Committee has considered the present communication in
light of all the information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional Protocol.
8.2 The Committee recalls its observation, in previous jurisprudence [FN8],
that courts notably in Common Law jurisdictions have traditionally exercised
authority to maintain order and dignity in court proceedings by the exercise
of a summary power to impose penalties for "contempt of court." In this
jurisprudence, the Committee also observed that the imposition of a
draconian penalty without adequate explanation and without independent
procedural safeguards falls within the prohibition of "arbitrary"
deprivation of liberty, within the meaning of article 9, paragraph 1, of the
Covenant. The fact that an act constituting a violation of article 9,
paragraph 1, is committed by the judicial branch of government cannot
prevent the engagement of the responsibility of the State party as a whole.
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[FN8] Fernando v. Sri Lanka, supra
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8.3 In the current case, the author was sentenced to two years rigorous
imprisonment for having stated at a public meeting that he would not accept
any "disgraceful decision" of the Supreme Court, in relation to a pending
opinion on the exercise of defence powers between the President and the
Minister of Defence. As argued by the State party, and confirmed on a review
of the judgement itself, it would appear that the word "disgraceful" was
considered by the Court as a "mild" translation of the word uttered. The
State party refers to the Supreme Court's argument that the sentence was
"deterrent" in nature, given the fact that the author had previously been
charged with contempt but had not been convicted because of his apology. It
would thus appear that the severity of the author's sentence was based on
two contempt charges, of one of which he had not been convicted. In
addition, the Committee notes that the State party has provided no
explanation of why summary proceedings were necessary in this case,
particularly in light of the fact that the incident leading to the charge
had not been made in the "face of the court". The Committee finds that
neither the Court nor the State party has provided any reasoned explanation
as to why such a severe and summary penalty was warranted, in the exercise
of the Court's power to maintain orderly proceedings, if indeed the
provision of an advisory opinion can constitute proceedings to which any
summary contempt of court ought to be applicable. Thus, it concludes that
the author's detention was arbitrary, in violation of article 9, paragraph
1.
8.4 The Committee concludes that the State party has violated article 19 of
the Covenant, as the sentence imposed upon the author was disproportionate
to any legitimate aim under article 19, paragraph 3.
8.5 As to the claim of a violation of article 25 (b), due to the prohibition
on the author from voting or from being elected for seven years after his
release from prison, the Committee recalls that the exercise of the right to
vote and to be elected may not be suspended or excluded except on grounds,
established by law, which are objective and reasonable. It also recalls 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 the
sentence" [FN9]. While noting that the restrictions in question are
established by law, the Committee notes that, except for the assertion that
the restrictions are reasonable, the State party has provided no argument as
to how the restrictions on the author's right to vote or stand for office
are proportionate to the offence and sentence. Given that these restrictions
rely on the author's conviction and sentence, which the Committee has found
to be arbitrary in violation of article 9, paragraph 1, as well as the fact
that the State party has failed to adduce any justifications about the
reasonableness and/or proportionality of these restrictions, the Committee
concludes that the prohibition on the author's right to be elected or to
vote for a period of seven years after conviction and completion of
sentence, are unreasonable and thus amount to a violation of article 25(b)
of the Covenant.
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[FN9] General Comment No. 25 [57]: The right to participate in public
affairs, voting rights and the right of equal access to public service
(Article 25), CCPR/C/21/Rev.1/Add.7, para. 14.
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8.6 In light of the finding of violations of articles 9, paragraph 1, 19,
and 25 (b) in this case, the Committee need not consider whether provisions
of article 14 may have any application to the exercise of the power of
criminal contempt.
9. 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 article 9,
paragraph 1; article 19; and article 25 (b), of the International Covenant
on Civil and Political Rights.
10. In accordance with article 2, paragraph 3 (a), of the Covenant, the
State party is under an obligation to provide the author with an adequate
remedy, including compensation and the restoration of his right to vote and
to be elected, and to make such changes to the law and practice, as are
necessary to avoid similar violations in the future. The State party is
under an obligation to avoid similar violations in the future.
11. Bearing in mind that, by becoming a State party to the Optional
Protocol, the State party has recognized the competence of the Committee to
determine whether there has been a violation of the Covenant or not and
that, pursuant to article 2, of the Covenant, the State party has undertaken
to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the Covenant, the Committee wishes to
receive from the State party, within 180 days, information about the
measures taken to give effect to its Views. The State party is also
requested to publish the Committee's Views.
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
Made public by decision of the Human Rights Committee.
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