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Five Judge Supreme Court Bench sentences former minister to two years' RI : 

SB jailed

by Sarath Malalasekera and Wasantha Ramanayake

UNP Parliamentarian and former Minister S.B. Dissanayake was yesterday sentenced to two years' Rigorous Imprisonment for contempt of Court.

The five Judge Supreme Court Bench in a unanimous verdict held that Dissanayake had defamed the Supreme Court during a speech he made at a Vap Magul ceremony at Habaraduwa in November last year.

Chief Justice Sarath N. Silva, PC, delivered a 21 page judgement lasting nearly 45 minutes. The other Judges comprised Justice Dr. Shirani Bandaranayake, Justice T.B. Weerasuriya, Justice Nimal E. Dissanayake and Justice Rajah Fernando.

The Superior Court complex was ringed by heavily armed security including the STF from the early hours of yesterday to deal with any contingency. There was a massive crowd at the Supreme Court premises in anticipation of the Judgement.

Dissanayake attired in his usual national dress appeared in court accompanied by wife Tamara and several UNP Parliamentarians.

Following the delivery of the Judgement, Dissanayake who was one time the Minister of Youth Affairs and Sports, Samurdhi, Agriculture and Livestock was held in a room in the Court complex by Police officers until the committal was signed.

The Police later summoned the Prison authorities and handed over the convicted Dissanayake to prison officials.

He was then removed to Welikada prison handcuffed under heavy escort. The Bench in its unanimous judgement said: "It is manifest that the severe admonition and warning has had no impact on the respondent (Dissanayake).

He appears to have been emboldened by the leniency shown by this Court and directly confronted the authority of the Court with a slanderous and abusive tirade with the objective of whipping up public opinion against the Court.

Therefore we have to agree with the submissions by the Solicitor General that the punishment imposed should carry a measure of deterrence."

On an earlier sitting, the video recording of the speech was viewed by the Bench, Bar, counsel on both sides and the public.

Later Dissanayake admitted the speech he made at the Vap Magul ceremony in Habaraduwa on November 3, 2003.

The Chief Justice in his judgement, the other Judges agreeing, said that Article 105 (3) places no limitation on the punitive power of the Court and a person found guilty of an offence of contempt of Court would be liable to any term of imprisonment or fine as may be considered appropriate by Court.

It is significant that the limitation of the punishment as contained in Section 41 (3) of the Administration of Justice Law that the term of imprisonment shall not exceed seven years and the fine shall not exceed Rs.5,000 has been removed by Article 105 (3) of the Constitution. However, this extensive punitive power has to be used with caution.

A deterrent punishment will be imposed ordinarily when corrective measures are seen to be ineffective.

In the previous instance the impugned speech of the respondent was with regard to a Constituent Assembly to adopt a new Constitution.

He stated that they will close down Parliament and 'if necessary close down the Courts to pass this Constitution.'

The second sentence was that if "State Judges" do not agree with the implementation of the Constitution, "they could go home." The Court upon a consideration of the context in which the speech was made and the conduct of the Respondent referred to above stopped short of entering a conviction and imposing a punishment.

The final portion of the judgement states as follows:- "However, we are firmly of the view that the respondent be severely admonished for the lapse on his part and warn him against making statements that adversely impact on the Administration of Justice by this Court. Subject to the foregoing the Rule is discharged."

Accordingly, we affirm the Rule served on the Respondent, convict the respondent of the offence of contempt of court punishable under Article 105 (3) of the Constitution and sentence the respondent to a term of two years rigorous imprisonment.

The registrar was directed to issue a warrant committing the Respondent to prison.

Security arrangements were coordinated by Colombo Central ASP Susantha Premalal Ranagala assisted by Chief Inspector J.M.P. Jayalath, OIC Slave Island Police and Inspector W.M. Chandratilleke OIC Keselwatte Police.

The Supreme Court Marshall Dias Abeygunawardene coordinated security arrangements within the court premises.

Solicitor General C.R. de Silva, PC with Senior State Counsel Kapila Waidyaratne and Ms. Harippriya Jayasundera appeared for the Attorney General.

President's Counsel Romesh de Silva with A.P. Niles, Maithri Wickremasinghe, Chandana Perera and Sugath Caldera instructed by G.G. Arulpragasam appeared for respondent S.B. Dissanayake.

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Judgement of the Supreme Court : S.B. Dissanayake sentenced to two year's Rigorous Imprisonment

A complaint was received by the Registrar of this Court from four persons resident in the Galle District, alleging that the Respondent D. M. S. B. Dissanayake, being a Member of Parliament and a Minister made a speech at a public meeting, held in connection with an official "Vap Magul" ceremony (signifying the cultivation of paddy) at Habaraduwa, on 3.11.2003, which was in contempt of this Court.

They also submitted a video cassette being a copy of the recording made by the Provincial Correspondent of the Sri Lanka Rupavahini Corporation and a transcript containing the impugned speech. Complaints were also individually addressed to all Judges of this Court.

The Registrar was then directed to check with the original recording at the Sri Lanka Rupavahini Corporation as to the accuracy of the copy and transcript submitted. When the Registrar reported that what has been submitted is a true copy, in accordance with the practice of this Court, the matter was circulated amongst the Judges to ascertain their views whether further proceedings should be taken for contempt of Court. On the basis of the views expressed the matter was referred to the Attorney-General who submitted a Rule to be issued on the Respondent.

The Rule alleged that a speech made by the Respondent at the ceremony referred to above, is in contempt of this Court and required him to show cause as to why he should not be punished for the offence of contempt of Court under Article 105 (3) of the Constitution.

The Respondent appeared in Court on 7.5.2004 and the Rule was read to him. When questioned by Court, he stated that the transcript of the impugned speech contained distortions. Since the Rule was issued on the basis that the Respondent made the speech attributed to him and considering the allegation made of distortions, the Registrar was directed to read the impugned speech, sentence by sentence and the Respondent was requested to indicate the distortions. In that process the Respondent admitted the whole of the statement except for two sentences.

He denied having uttered the first sentence referred to above and stated that he cannot remember having uttered the second.

In view of the position taken up by the Respondent the inquiry was adjourned and the Registrar was directed to arrange for the recording to be viewed by counsel in the presence of the Respondent and the matter was re-fixed for inquiry before a bench of 5 Judges to commence on 1.7.2004, on which day the Respondent was absent.

The Medical Certificate submitted on his behalf was not acceptable. The Court having recorded the reasons for not accepting the Medical Certificate, did not take any further action in the matter but fixed the inquiry for 14.09.2004, with an order that the inquiry would proceed on that day whether the Respondent is present or not.

On 14.09.2004 counsel submitted that he has received specific instructions from the Respondent, who was present, that although on the previous day he disputed two sentences of the impugned speech he would now admit having made the entirety of the speech attributed to him, except for the word "balu" appearing in the first sentence referred to above.

Counsel submitted that the specific plea of the Respondent is that he meant no disrespect to the Court or any of its members and had no intention saying anything contemptuous of the Court. Counsel urged that the matter be dealt with on that basis without any further inquiry into the use of the disputed word.

The Court was not inclined to conclude the inquiry on the basis suggested since the Rule was issued on the premise that the Respondent made the whole of the speech attributed to him and the position taken up by the Respondent raised the serious issue of the recording having been distorted to the detriment of the Respondent. Therefore it was decided to proceed with the inquiry.

The officials of the Sri Lanka Rupavahini who were present in Court played back the recording in open Court. At first, they played back a recording of the news telecast of the relevant news item which contained the impugned speech and counsel submitted that there were no background sounds (of the meeting) at the point when the disputed word was said.

Thereafter a copy of the original recording issued to the Registrar of this Court was played back and the background sounds were clearly audible at the disputed point. At that stage Counsel submitted that the Respondent would admit the entire statement attributed to him. There being no disputed questions of fact, it was agreed that the inquiry could be concluded on the basis or written submissions.

The thrust of the written submissions of President's Counsel for the Respondent is that "the impugned speech deals with a reference to the Supreme Court in the exercise of its consultative jurisdiction under Article 12(1) of the Constitution." It appears that the reference to Article 12(1) is an error and that the reference should be to Article 129(1) of he Constitution.

It is contended that the exercise of such jurisdiction is not a "judicial act." Heavy reliance is placed on the dictum of Lord Diplock in the case of Attorney General vs Times Newspapers Ltd., (1973) 3 AER page 54 at page 72 where His Lordship has stated that contempt of Court consists of conduct calculated to prejudice the requirements of the due administration of justice or to undermine the public confidence in it.

It is submitted that none of the three requirements of the due administration of justice specified by His Lordship apply in relation to the exercise of consultative jurisdiction of this court under Article 129(1) of the Constitution and that the impugned speech of the Respondent can in "no way amount to contempt of Court."

In the next part of the submission President's Counsel commends the conduct of the Respondent for admitting the speech without any hesitation and for stating that he meant no disrespect to this Court."

It is further submitted that taken as a whole it is a 'political speech' and that the Respondent was merely reiterating the position of his party when stating that "we" would not accept either the reference to the Supreme Court or the opinion of the Supreme Court. As regards the use of the word ' t-' it is submitted that although he originally denied using that word, when he heard the video cassette being played in Court "he felt that he would have uttered the word and thus admitted this."

It is further submitted that this shows "the honesty" of the Respondent. In this context it is also submitted that the Respondent is a politician "used to colloquialisms" and that word would have 'slipped out of the Respondent unintentionally and without pre-meditation."

It is not disputed that the impugned statement relates to the reference made by Her excellency the President invoking the consultative jurisdiction of this Court in terms of Article 129(1) of the Constitution and the report to be made of the Opinion of the Court, thereon. In view of the submission made by Counsel for the Respondent that the 'Giving of an advisory opinion is not a judicial act" and on that premise the impugned speech could not be considered as contempt of court, it is necessary to consider the nature of a proceeding held in terms of Article 129 of the Constitution in its proper context of the relevant provisions of the Constitution.

Article 3 lays down the basic premise of the Constitution that in the Republic of Sri Lanka sovereignty is in the People and Article 4 provides for the exercise of such sovereignty by the three organs of government - the legislature, executive and the judiciary. In view of this separation of powers, the present Constitution, unlike the Constitutions of 1948 and 1972, contains specific provisions with regard to the exercise of judicial power and the jurisdiction of the Superior Courts. It is relevant here to cite Article 118 of the Constitution which lays down the general jurisdiction of the Supreme Court.

Article 118 "The Supreme Court of the Republic of Sri Lanka shall be the highest and final superior Court of record in the Republic and shall subject to the provisions of the Constitution exercise -

a) jurisdiction in respect of constitutional matters;

b) jurisdiction for the protection of fundamental rights;

c) final appellate jurisdiction

d) consultative jurisdiction

e) jurisdiction in election petitions;

f) jurisdiction in respect of any breach of the privileges of Parliament; and

g)jurisdiction in respect of such other matters which Parliament may by law vest or ordain".

Thus in terms of Article 118(d), consultative jurisdiction is exercised as "the highest and final superior court of record in the Republic." Such jurisdiction is exercised only in two instances; when invoked by the President or the Speaker, in the manner provided in article 129 of the Constitution. The President is empowered in terms of sub-Article (1) to invoke the consultative jurisdiction where "a question of law or fact has arisen or is likely to arise which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, by referring that question "for consideration to this Court".

The Court is then required, "after such hearing as it thinks fit within the period specified in such reference or within such time as may be extended by the President, report to the President its opinion thereon".

In terms of sub-Article (2), the Speaker is empowered to refer to the Supreme Court for inquiry and report the allegations contained in a resolution for the impeachment of the President passed by not less than two-thirds of the whole number of members of Parliament in terms of Article 38(2)(c) of the Constitution.

These are two limbs of Article 129 of the Constitution which provide for the exercise of consultative jurisdiction and it could never be contended that the exercise of jurisdiction under one limb is a judicial act and under the other it is not.

On the other hand, the Constitution has placed the exercise of consultative jurisdiction under both limbs at the same level of significance. Sub-Article (3) provides that in both instances the "opinion, determination and report shall be expressed after consideration by at least five Judges of the Supreme Court (a Divisional Bench), of whom unless he otherwise directs, the Chief Justice shall be one".

There is only one other instance in the whole of the Constitution which requires a matter to be considered by not less than five Judges of the Supreme Court, that is, Article 130 which relates to a petition filed challenging the election of the President. Whereas, in terms of Article 132(2) the jurisdiction of the Supreme Court is "ordinarily exercised" by not less than three Judges sitting together.

Counsel for the Respondent has submitted that a proceeding under Article 129(1) is "not a judicial act" without analysing any of the salutary provisions of the Constitution referred to above. A page reference has been given to Seervai's book on the Constitutional Law of India without appreciating the significant differences in the framework of the Indian Constitution. A further error in the written submission is the description of the opinion as being "advisory". The word "advisory" is an interpolation of counsel and is not found in Articles 118 or 129 which deal with the matter.

The rationale for the vesting of consultative jurisdiction in this Court, to be necessarily exercised by a Divisional Bench, could be related to the separation of powers being the basis of our Constitution and the need in a situation of "public importance" (being the phrase appearing in Article 129(1), to obtain an authoritative opinion of this Court in regard to the "questions of law or fact" in issue so that action could be taken on the matter of "public importance" without undue delay which would be the case, if these issues were to be dealt with in litigation, in the ordinary course.

An Opinion set down in a report made by a Divisional Bench of this Court would be binding on this Court itself in the exercise of its ordinary jurisdiction and on all other Courts. Since a reference is made in terms of Article 129(1) for the "consideration" at a "hearing" of the question of law or fact which has arisen or is likely to arise which is of public importance, the "proceeding" (being the term used in Article 129(4), is not an academic exercise or "advisory" in nature as misconceived by Counsel for the Respondent.

The practical significance of the exercise of consultative jurisdiction is clearly seen when we examine the matters and events relevant to the reference in question and the next matter in respect of which the consultative jurisdiction was invoked in terms of Article 129(1).

In the reference in question, in respect of which the Respondent made the impugned speech, the President submitted two questions to be considered in the light of the applicable provisions of the Constitution.

The first is with regard to the exercise of executive power as to the defence of Sri Lanka and the role of the Minister to whom the subject is assigned in terms of Article 44 of the Constitution and the second is with regard to the validity of certain Regulations that had been made by the Minister of Defence. On the basis of the opinion reported by the Divisional Bench, the President made changes in the assignment of subjects and functions and the Regulations in question ceased to be in operation. The subsequent events form part of the contemporary history of this country that need not be adverted to in this judgment.

The next reference was with regard to amnesties granted in respect of a large number of revenue laws by the Inland Revenue (Special Provisions). Act No. 10 of 2003 and whether the granting of such amnesties is inconsistent with the Constitution. A Divisional Bench of this Court reported its opinion that the granting of the amnesties was inconsistent with Article 12(1) of the Constitution and adverted to the extensive loss of public revenue that resulted. On the basis of the opinion reported by the Divisional Bench, the Parliament has by the Inland Revenue (Regulation of Amnesty) Act No. 10 of 2004, repealed the previous Act with retrospective effect providing for a limited operation of the amnesty which is also in accord with the opinion that has been expressed.

Thus, it is seen from a practical perspective, that the exercise of the consultative jurisdiction, mandatorily by a Divisional Bench of this Court in terms of Article 129(1), has measured upto the significance ascribed to this jurisdiction by the draftsmen of the Constitution.

In terms of Article 134(1) when a reference is made by the President in terms of Article 129(1), "the Attorney-General shall be noticed and have a right to be heard in all proceedings in the Supreme Court in the exercise of its jurisdiction". Although Article 129(4) gives a discretion to the Court to hold such proceedings in private, in practice the Court has always held such proceedings in public with due notice and parties who wish to be heard when the reference is being considered have been permitted to intervene.

In regard to the particular reference in question, President's Counsel representing the General Secretary of the political party who sought to intervene and the Attorney-General were heard when the questions were considered at a sitting in open Court by the Divisional Bench that was constituted. It is significant to note that neither the Respondent nor the political party of which he is a member (to which reference is made in the impugned speech and in the written submissions) sought to intervene and be heard in that proceeding.

Another significant aspect of the reference in respect of which the impugned speech has been made, is that it involves only questions of law relating to the interpretation of the Constitution. In term-of Article 125 (1) of the Constitution, "the Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution."

The jurisdiction of any other Court to decide on any question relating to the interpretation of the Constitution, which may arise in a proceeding before that Court is removed to the Supreme Court by Article 125 (1). Since the reference in issue relates only to questions of interpretation of the Constitution, the proceeding that followed thereon was in any event an exercise of the sole and exclusive jurisdiction reposed in this Court by Article 125 (1) of the Constitution.

Counsel for the Respondent has advanced his argument on the lines that, the exercise of consultative jurisdiction is not a judicial act; questions are considered at a private hearing and an advisory opinion is given and concluded on the premise that the impugned statement can in no way amount to contempt of Court. The aspects of the argument with regard to a "judicial act," a 'private hearing' and 'advisory opinion" have been dealt with in the preceding analysis.

It is now necessary to consider the submission that the impugned statement whatever be its content cannot amount to contempt of court.

The present Constitution of 1978, unlike the previous Constitutions of 1948 and 1972 vests inter alia the Superior Courts with the power to punish offences of contempt of court. The power of the Supreme Court to punish an offence of the contempt of court, previously contained in section 47 of the Courts Ordinance and after its repeal in section 41 (3) of the Administration of Justice Law No. 44 of 1973, is now contained in Article 105 (3) of the Constitution which reads as follows:

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. The power of the Court of Appeal shall include the power to punish for contempt of any other court, tribunal or institution referred to in paragraph 1(c) of this Article, whether committed in the presence of such court or elsewhere."

It is seen that the power vested in this Court to take cognizance of and impose punishment for offences of contempt of Court pertains to the exercise of jurisdiction as a superior court of record. Article 118, cited above, provides that the Supreme Court "shall be the highest and final Superior Court of record in the Republic" and shall exercise inter alia, "consultative jurisdiction".

Thus on a plain reading of the two provisions of the Constitution, not adverted to by Counsel in the written submissions, it is manifest that the exercise of consultative jurisdiction by this Court, as the highest and final superior court of the Republic, forms part of the administration of justice and necessarily attracts the power to take cognizance of and punish offences of contempt of court.

Counsel for the Respondent has placed heavy reliance as noted above on the dictum of Lord Diplock in the case of A. G. vs Times Newspapers Ltd (Supra). The constitutional framework of England is different and distinct from ours. No court of that country has a jurisdiction in any way akin to the consultative jurisdiction exclusively reposed in this Court by the Constitution.

Furthermore the case related to an application by the Attorney-General for an injunction to restrain a newspaper from publishing certain articles that were likely to prejudice a civil case for damages pending in the original court. The words used by His Lordship are particularly intended to apply to the facts of that case. However, we could examine the dictum to elicit any principle that could be used in the matter before us. The passage cited, 1973 3 AER page 54 at page 72 is as follows:

"The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely on obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based on those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely on there being no usurpation by any other person of the functions of that court to decide it according to law.

Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court."

The first requirement is the free and unhindered access to the constitutionally established courts. The second is that the parties should be able to rely on obtaining a fair determination free from any external influence solely on the matters adduced in court. Thirdly, that there should be no usurpation of the functions of the court to decide the matter according to law. His Lordship after setting out the requirements has stated an important proposition in the concluding words of the passage as follows:

"Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed, is contempt of court." We will now examine the applicability of the principles to be elicited from the dictum to the law and facts relevant to this inquiry.

The preceding analysis disclosed that the exercise of consultative jurisdiction by the Court forms part of the administration of justice by this Court to the like manner as the exercise of other jurisdiction vested in this Court. If at all there be any distinction it would be that the Constitution has ascribed to the exercise of consultative jurisdiction a higher significance, since it mandatorily requires that the exercise of such jurisdiction shall be by a Divisional Bench of this Court.

From this point when we move to a consideration of the requirements in the dictum, it is seen that the first requirement stated is that "all citizens should have unhindered access to the constitutionally established Courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities."

We have noted above that the observation was made by His Lordship in connection with a contempt proceeding arising from a civil action for damages. Furthermore, in England no court is vested with exclusive jurisdiction in respect of "constitutional matters" or a 'consultative jurisdiction' in the manner stated in Article 118(a) and (d)cited above. When a principle is elicited from this requirement, it would manifest two elements.

The first is that there should be a constitutionally established court with jurisdiction to entertain and decide on a question of law or fact and secondly that a citizen should have unhindered access to court in respect of that matter.

As regards the first element, it is seen that this court is expressly vested with jurisdiction to entertain a reference submitted by the President in respect of a question of law or fact of public importance and after consideration at a hearing by a Divisional Bench, give an opinion which would be binding on this Court in the exercise of its ordinary jurisdiction and all other Courts, Tribunals and the like.

Without labouring the point, it could be succinctly stated that word 'Jurisdiction' itself, used in Article 118(d) connotes categorically the power to decide in respect of the given subject matter. Therefore we have to conclude that the first element in the principle contained in the requirement stated by Lord Diplock is present in relation to the exercise of consultative jurisdiction.

The second element is the access to the constitutionally established court having jurisdiction. The word "access" is a general term and when related to the exercise of jurisdiction it would mean the right to invoke the jurisdiction of such Court or a right to be heard in a matter before such Court. It is an undoubted proposition that if any person claims a legal right to invoke the jurisdiction of a Court, or be heard in a mater before Court, such right should not be in any way hindered by any other person by conduct which is calculated to prejudice such access to Court.

The due administration of justice would be brought to nought and the rule of law negated and rendered meaningless, if any person having such a right or a sufficient locus standi, is hindered or impeded in having access to the Court as permitted by law. In this instance the President who, in terms of Article 30(1), "the Head of the State, the Head of the Executive and of the Government, and the Commander in Chief of the Armed Forces," is empowered in terms of Article 129(1) of the Constitution to invoke the consultative jurisdiction of this Court.

Therefore, in reference to the principles stated by Lord Diplock the President should have "unhindered access" to this Court in the matter of invoking the Court's consultative jurisdiction and be able to rely on a decision being made by this Court, devoid of any external influence and of any usurpation of the function of the Court to make such decision on basis of the matters adduced at the hearing.

Any conduct which amounts to a hindrance of such access to the Court or calculated to prejudice any of the stated requirements or to undermine the public confidence that these requirements will be observed, is contempt of Court in terms of the dictum of Lord Diplock relied on by Counsel for the Respondent. We have exhaustively stated our findings on the questions of law that arise for consideration in applying the principle contained in the dictum and have now to consider the related question of fact which has to be judged on the basis of the conduct of the Respondent.

In the impugned speech, the Respondent has ridiculed that act of the President in invoking the consultative jurisdiction of this Court. He has followed up the derisive remarks on such conduct of the President by repeated statements that "they" do not accept the reference to Court and would not accept any decision given by this Court. Counsel for the Respondent made a point of the fact that the Respondent was merely stating the decision of his party.

However, we have to note that although he has referred to the party and used the plural, he has taken personal responsibility by categorically saying that he is making the statement, even if he is brought before the Supreme Court again. He was there alluding to a previous instance in which a Rule was issued on him for contempt of court and he was severely admonished and warned against making statements that adversely impact on the administration of justice by this Court.

Therefore, the only inference to be drawn is that, the Respondent took responsibility for the statement knowing fully well that statement is in contempt of Court and that he would be arraigned before the Court on a Rule. He followed up by uttering that "he" would like to say that he would not accept any disgraceful decision of this Court. The word "disgraceful" is a mild translation of the word "balu" used by him which is a derogatory word of slang in Sinhala deriving from the word dog. It is significant that he has used this derogatory word after specifically saying that he would be brought before this Court once again on a rule for contempt of Court.

Other significant factors are the time and the occasion in which the Respondent made the impugned speech. The Reference made by the President dated 21.10.2003 was received in this Court on 28.10.2003. The hearing before the Divisional Bench took place on 31.10.2003. As noted above this was a public sitting of the Court and the full day of the Court's work was set apart for this purpose.

The Attorney General and President's Counsel appearing for the only part who sought to intervene were heard and it was announced that the report containing the opinion of the Court would be submitted to the President within the time that had been specified. The Respondent made the impugned speech on 3.11.2003 during the period the Judges were in the process of deciding on the matters in issue that were before the Court. The Respondent made an important official function the occasion to make the impugned speech.

The "Vap magul" ceremony is the foremost national event to signify the commencement of the paddy cultivation season. Paddy cultivation is the main agricultural activity of the country and produces rice, being the staple diet of the People.

The Respondent's speech is not even remotely connected to the noble process which the ceremony signifies, steeped in the long history spanning several millennia and the rich cultural traditions of the country.

Two inferences have to be necessarily drawn from the tirade of the Respondent directed at this Court. The first is that the Respondent sought to intimidate the Court and, make such intimidation a general and public process, at a time when the judges were in the process of deciding the matter.

Secondly, with his abusive and derogatory remarks aimed at the authority of this Court, by alluding to the possibility of his being brought up on a charge of contempt of court, he sought whip up a public opinion against the administration of justice by this Court and undermine public confidence in a proceeding that was pending.

Although Counsel for the Respondent sought to minimise the impact of the speech by submitting that it was made in a remote village, the glaring fact is that the speech was made by the Respondent as a high ranking Cabinet Minister, at an official function held in connection with a national event, which received coverage by the print and electronic media. Counsel further submitted that excerpts of the speech were broadcast by the Sri Lanka Rupavahini Corporation after the Respondent's political opponents took over control of the relevant ministry.

But, we have to note that the recording of the speech was done by the correspondent of the Sri Lanka Rupavahini Corporation before any such change took place and the Respondent being an experienced politician would have observed the presence of the cameras and intended his speech to receive the widest coverage.

His intended audience was certainly not the farmers in the paddy field but the country as a whole. This inference is fully warranted by the fact that, as stated in the Rule itself, a national Sinhala daily newspaper reported extracts of the Respondents speech on the very next day under the headline "We will not accept what ever the decision given by the Supreme Court." Therefore, the Respondent is fully and solely responsible for the wide coverage of the speech by the print and electronic media, which served his intended purpose.

Any decision of this Court is certainly subject to bona fide criticism based on reasoned analysis. However the Respondent's tirade against the Court is devoid of even a vestige of bona fides since the abusive words were uttered even before the decision was made. Therefore in applying the principles elicited from the dictum of Lord Diplock we have to necessarily hold that the conduct of the Respondent is an aggravated form of contempt of court far in excess what could possibly have been in the contemplation of His Lordship.

It would be appropriate here to cite the observations of Lord Hardwicke in the St. James's Evening Post (1742) 2 Atk page 469

"Nothing is more incumbent upon courts of justice, than to preserve their proceedings from being misrepresented; nor is there anything of more pernicious consequence, than to prejudice the minds of the public against persons concerned as parties in causes, before the cause is finally heard." And later at page 471 - "There are three different sorts of contempt. One kind of contempt is, scandalising the court itself.

There may be likewise a contempt of this court, in abusing parties who are concerned in causes here. There may be also a contempt of this court, in prejudicing mankind against persons before the cause is heard. There cannot be anything of greater consequence, than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters."

The passage has been cited in several cases including the Times newspaper case itself referred to above, by Lord Reid (at page 60) who described the observations as a 'good guide' which should be supplemented in cases of a type not contemplated by Lord Hardwicke.

We have to note that Lord Hardwicke was concerned with the 'abusing' of parties, before the case is heard. In the matter before us the Respondent has ridiculed the conduct of the President but has gone far beyond in relation to the Court itself by describing the decision yet to be given by a disparaging and slanderous word. The thrust of his attack is on the Court itself and he has repeatedly said that the decision of the Court will not be accepted.

Therefore it is not a mere political speech as submitted by Counsel for the Respondent but a speech clearly intended to scandalise the Court itself and to bring the decisions of the Court into ridicule and contempt. The speech strikes at the root of the administration of justice by the Court by eroding public confidence and whipping up public opinion against the decisions and processes of the Court.

It would also be appropriate to cite the observations of Sethi J., in the case of In re. Arundhati Roy AIR Supreme Court II - 2002 page 1375 at page 1379 -

"Rule of Law is the basic rule of governance of any civilised democratic policy. Our constitutional scheme is based upon the concept of Rule of Law which we have adopted and given to ourselves. Everyone, whether individually or collectively is unquestionably under the supremacy of law.

Whoever the person may be, however high he or she is, no-one is above the law notwithstanding how powerful and how rich he or she may be. For achieving the establishment of the rule of law, the Constitution has assigned the special task to the judiciary in the country.

It is only through the Courts that the rule of law unfolds its contents and establishes its concept. For the judiciary to perform its duties and functions effectively and true to the spirit with which it is sacredly entrusted, the dignity and authority of the Courts have to be respected and protected at all costs. After more than half a century of independence, the judiciary in the country is under a constant threat and being endangered from within and without.

The need of the time is of restoring confidence amongst the people for the independence of the judiciary. Its impartiality and the glory of law has to be maintained, protected and strengthened. The confidence in the Courts of justice, which the people possess, cannot, in any way, be allowed to be tarnished, diminished or wiped out by contumacious behaviour of any person. The only weapon of protecting itself from the onslaught to the institution is the long hand of contempt of Court left in the armoury of judicial repository which, when needed, can reach any neck howsoever high or far away it may be..."

In that case the Supreme Court of India convicted a journalist and a social worker of international repute of the offence of contempt of court and imposed a nominal term of imprisonment. We are of the view that it would be inappropriate to judge the conduct of the Respondent in relation to Arundhati Roy.

Although we have cited dicta of Courts in England and India, we are mindful of the observations made by the Privy Council in an appeal from Mauritius in the case of Ahmee vs DPP (1999) 2 WLR page 1305. At page 1314 Lord Steyn observes as follows: "On a small island such as Mauritius the administration of justice is more vulnerable than in the United Kingdom."

It is indeed a relevant observation in relation to our country as well. In a large country remarks made in a distant place may not receive attention and probably be forgotten in the mass of other events.

But, in Sri Lanka, the reference made by the President to this Court of a matter of public importance and the hearing before this Court by a divisional Bench received, as it necessarily would, a high degree of public attention.

These matters set in motion a process of significance to the entire country. On the other hand the Respondent being a high ranking Cabinet Minister, who could have submitted his views, if any, on the important constitutional questions that were deliberated by the Court, at the hearing, chose the path of public confrontation. His vituperative and slanderous tirade aimed generally at the decisions of this Court, intended to receive wide coverage over the media, strikes at the root of the administration of justice by this Court and negates the rule of law.

He was set on a dangerous conflict course of whipping up public opinion hostile to this Court and its decisions.

He probably would have been confident of achieving his objectives because he specifically stated before using slanderous langauge, that he is doing so even if he is brought once again on a charge of contempt of Court. The expression of regret months later, in a changed order of affairs, is of little significance. Therefore we have to necessarily bring home the result which he himself anticipated and find the Respondent guilty of the offence of contempt of court under Article 105 (3) of the Constitution. As regards the punishment to be imposed, counsel for the Respondent has commended the "honesty" of the Respondent in admitting the statement and the expression of regret.

On the other hand the Solicitor General has tendered an exhaustive submission with reference to circumstances that warrant a deterrent punishment.

We have to disagree with the submission of Counsel for the Respondent regarding the conduct of the Respondent. In regard to the previous instance in which a Rule for contempt of court was issued on the Respondent (S.C. Rule No. 3 of 2000 minutes of 17.07.2000) he tendered a public apology to the Court within 5 days of the impugned statement being published and followed up with an effective expression of regret in an affidavit filed in Court.

This has not been done in the matter now before this Court. On the contrary, as noted above, when the Rule was read to him in court he alleged that the extract of the speech in the Rule is distorted. When the speech was read out sentence by sentence, he disputed only two sentences. After the recording was replayed to Counsel, the two disputed sentences were also admitted except for one word. This word was admitted only after the recording was replayed twice in open Court. Thus, it is seen that honesty came forth in driblets and the conduct, if at all displays a lack of candour.

Article 105 (3) places no limitation on the punitive power of the Court and a person found guilty of an offence of contempt of Court would be liable to any term of imprisonment or fine as may be considered appropriate by Court.

It is significant that the limitation of the punishment as contained in Section 41(3) of the Administration of Justice Law that the term of imprisonment shall not exceed 7 years and the fine shall not exceed Rs. 5000 has been removed by Article 105(3) of the Constitution. However, this extensive punitive power has to be used with caution. A deterrent punishment will be imposed ordinarily when corrective measures are seen to be ineffective. In the previous instance the impugned speech of the Respondent was with regard to a Constituent.

Assembly to adopt a new Constitution. He stated that they will close down Parliament and 'if necessary close down the Courts to pass this Constitution'. The second sentence was that if "state Judges" do not agree with the implementation of the Constitution, "they could go home". The Court upon a consideration of the context in which the speech was made and the conduct of the Respondent referred to above stopped short of entering a conviction and imposing a punishment. The final portion of the judgement states as follows:

"However, we are firmly of the view that the Respondent be severely admonished for the lapse on his part and warn him against making statements that adversely impact on the Administration of Justice by this Court. Subject to the foregoing the Rule is discharged."

It is manifest that the severe admonition and warning has had no impact on the Respondent. He appears to have been emboldened by the lenience shown by this Court and directly confronted the authority of the Court with a slanderous and abusive tirade with the objective of whipping up public opinion against the Court. Therefore we have to agree with the submission of the Solicitor General that the punishment imposed should carry a measure of deterrence.

Accordingly, we affirm the Rule served on the Respondent; convict the Respondent of the offence of contempt of court punishable under Article 105(3) of the Constitution and sentence the Respondent to a term of two years rigorous imprisonment. The Registrar is directed to issue a warrant committing the Respondent to prison.

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SB's career

S. B. Dissanayake - (Born Sept. 18, 1952) Minister of Youth Affairs, Sports and Rural Development in the 1994 PA Government. He was a graduate in business administration. He started his political journey with the Communist Party of Sri Lanka. During 1974-'78 he was a central committee member of the CP. In 1979 he joined the SLFP, entered the executive committee and became the chairman of the Nuwara Eliya youth organisation.

Dissanayake had his education at the Poramadulla Central College and entered the Sri Jayewardenepura University.

During 1973-'75 he was the president of the Inter University Students'; Federation and president of the Vidyodaya University Students' Union. During 1975-'77 he was the president of the Sri Lanka National Students' Union.

He worked as a research officer and a consultant at the Marga Institute. He won many shields and awards for sport during his student days.

In 2001 he joined the UNP and with its coming to power in December that year, was appointed as Minister of Samurdhi.

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Countrywide jubilation over verdict

Fire crackers were lit in many parts of the country minutes after news of the Supreme Court verdict sentencing former Minister S.B. Dissanayake to two years RI went over the airwaves.

Celebrations were more evident in Hanguranketha which was reeling under the hegemony of the ex-Minister especially during election time.

Other areas where celebrations were witnessed included Rikiligaskada, Adhikarigama, Maturata, Mandaramnuwara and Padiyapellella.

Reports said many people in Walapane and Kotmale, the other electorates in the Nuwara Eliya District which faced the brunt of election violence unleashed by Dissanayake supporters reacted with jubilation after hearing the verdict.

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