Between the Blinds
by Nalin Swaris
The bizarre punishment meted out to Anthony Michael Fernando on a charge of contempt of court shocked the international legal community. Fernandos long and painful struggle to seek legal remedy for a real or perceived violation of his rights was detailed in a feature article published in the Sunday Leader of February 22 2002.
This right is guaranteed by Article 2 of the International Covenant on Civil and Political Rights to which Sri Lanka is a signatory. Fernando had finally turned to the highest court in the land to seek legal redress for an alleged violation of his fundamental rights by our judicial system. He arrived in court as an ordinary citizen. At the end of the hearings he found himself manacled like a common criminal and taken to serve a one years prison.
Dato Param Cumaraswamy, the UN Special Rapporteur has stated that his office in Geneva was inundated by protests and urgent appeals to take a stand in this matter. Cumaraswamy arrived in the Island, visited Fernando in hospital and obtained first hand information about the case. Fernando had alleged that on top of the heavy jail sentence he had been beaten by prison officers and subjected to degrading treatment by hospital personnel. If these allegations are proven, it amounts to "cruel inhuman and degrading treatment" terms used to define torture in the Anti-Torture Act.
The AFP and PTI reported that Cumaraswamy had said he was "shocked" and "stunned" by Sri Lankas Chief Justice Sarath Silva hearing a case against himself. The punishment of Anthony Fernando calls to mind a criminal contempt of court case in neighbouring India last year. It was the sentencing of Arundhati Roy to a one-day prison sentence by the Supreme Court of India. Roys courage and eloquent defence of her position should inspire and jolt awake civil society activists and professionals who seem to be dormant in the face of the deplorable state of Sri Lankas judicial and legal system.
The Case of Arundhati Roy
For over 15 years the Save the Narmada Movement led by the reknowned film star with a social conscience, Medha Patkar, has been organizing struggle against the construction of big dams on the Narmada River. Arundhati Roy had been an active participant in public demonstrations organised by the Movement. These included protests against the dismissal by the Supreme Court of a lawsuit filed by activist groups to stop the building of the Dam. The Dams lawyers filed a case against Roy, Patkar and Movement lawyer, Pranshant Bhushan accusing them of contempt of the Supreme Court citing slogans the three had shouted outside the court during those protests. In the affidavit which Arundhati Roy filed in her defense, she argued that the courts very decision to consider charges against her revealed "a disquieting inclination on the part of the court to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it." In August 2001, the Indian Supreme Court dismissed the petition against the three respondents. However, in a remarkably twisted move the court demanded that Roy show cause as to why she should not face new contempt charges for the affidavit she filed in the dismissed contempt case!
The presiding judge at the hearings of this outrageous case against Arundhati Roy was one of the judges against whom the "contemptuous" remarks were supposedly made. In March 2002 the Supreme Court ruled that Arundhati Roys affidavit in fact constituted contempt of court and imposed a symbolic one-day prison term and a 2,000 rupees fine. If she refused to pay the fine, her jail term would be extended to three months. The judges described the punishment as "showing the magnaminity of Law, by keeping in mind the respondent is a woman." However controversial the case and the verdict, the Supreme Court of India showed it could be clement, not petty. But Arundhati Roy remained unrepentant and unflinching in her insistence that every citizen has a fundamental right to protest against muzzling freedom of expression even if the offender is the highest court in the land. (Source Lakshmi Chaudhry, www. AlterNet.com) Arundhati Roy and Contempt of Court
The following are some extracts from the courageous public statement Arundhati Roy issued on her release from prison:
"I stand by what I have said in my Affidavit and I have served the sentence which the Supreme Court of India imposed on me. Anybody who thinks that the punishment for my supposed "crime" was a symbolic one day in prison and a fine of two thousand rupees, is wrong. The punishment began over a year ago when notice was issued to me to appear personally in Court over a ludicrous charge which the Supreme Court itself held should never have been entertained. In India, everybody knows that as far as the legal system is concerned, the process is part of the punishment...Paying the fine does not in any way mean that I have apologized or accepted the judgment. I decided that paying the fine was the correct thing to do, because I have made the point I was trying to make.
To take it further would be to make myself into a martyr for a cause that is not mine alone. It is for Indias Free Press to fight to patrol the boundaries of its freedom which the law of Contempt, as it stands today, severely restricts and threatens. I hope that battle will be joined. If not in the course of this last year, I would have fought only for my own dignity, for my own right as an Indian citizen to look the Supreme Court of India in the eye and say, "I insist on the right to comment on the Court and to disagree with it." That would be considerably less than what I hope this fight is all about. Its not perfect, but itll have to do.
There are parts of the Judgment which would have been deeply reassuring if it werent for the fact that citizens of India, on a daily basis, have just the opposite experience "Rule of Law is the basic rule of governance of any civilized, democratic polity.... Whoever the person may be, however high he or she is, no one is above the law notwithstanding however powerful and how rich he or she may be." If only!
The Judgment goes on to say "after more than half a century of Independence, the Judiciary in the country is under constant threat and being endangered from within and without." If this is true, would the way to deal with it be to do some honest introspection or to silence its critics by exercising the power of Contempt?
On the December 23, 2001, the Chief Justice of India, in an Inaugural Address to a National Legal Workshop in Kerala, said that 20 percent of the Judges in this country across the board may be corrupt, and that they bring the entire Judiciary into disrepute. But of course this did not constitute Criminal Contempt. Now let me read you what a former Law Minister said in a public speech some time ago: "The Supreme Court, composed of the elements of the elite class, had their unconcealed sympathy for the Haves i.e. the zamindars anti-social elements, bride-burners and a whole horde of reactionaries, have found their haven in the Supreme Court.
In this judgment, the Court says that the Law Ministers statement was permissible because "the criticism of the judicial system was made by a person who himself had been a judge of the High Court and was the Minister at the relevant time."
However, they go on to say that "all citizens cannot be permitted to comment upon the conduct of the Courts in the name of fair criticism, which if not checked, would destroy the institution itself." In other words, it is not just what you say, nor its correctness or justification, but who says it, which determines whether or not it constitutes criminal contempt.
In other words, the assertion contained in the beginning of this judgment namely: "whoever the person may be, however high he or she is, no one is above the law notwithstanding how powerful or how rich he or she might be" is contradicted by the judgment itself. I wish to reiterate that
I believe that the Supreme Court of India is an extremely important institution and has made some enlightened judgments. For an individual to argue with the Court, does not in any way imply that he or she is undermining the whole institution. On the contrary, it means that he or she has a stake in this society and cares about the role and efficacy of that institution. Today, the Supreme Court makes decisions that affect for better or for worse the lives of millions of common citizens. To deny comment and criticism of this institution, on pain of criminal contempt, from all but an exclusive club of experts, would, I think, be destructive of the democratic principles on which our constitution is based. The judiciary in India is possibly the most powerful institution in the country, and as the Chief Justice recently implied, the least accountable.
In fact, the only accountability of this institution is that it can be subjected to comment and criticism by citizens in general. If even this right is denied, it would expose the country to the dangers of judicial tyranny".
During the Colombo press conference Dato Param Cumaraswamy said there was little outsiders could do to improve the judicial system in the island and urged civil society to take a stand to demand a better judiciary" "What I am concerned about", he said, "is not only the independence of the judiciary but also the accountability of the judges. I want the Bar Association of Sri Lanka to wake up, have the courage to take up the cause of this man without demanding guarantees that they will be not he hauled up for contempt". In Sri Lanka, the Silence of the Lambs (civil and uncivil) is deafening.
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