Title: Is Ranil fudging the judiciary?

With all the political mayhem in the country, many have begun wondering whether the system has been manipulated by the present regime to frame those aligned with former President Mahinda Rajapaksa. Now, the recent comments made by Ranil Wickremesinghe on the interim order issued by the Supreme Court have introduced a new wave of speculation on the judiciary.

Background of the case

On 13 May, former Defence Secretary Gotabhaya Rajapaksa had successfully pleaded for an interim order staying his arrest until the full and final determination of his fundamental rights petition.

However, the hearing had been marred by a minor glitch when Justice Buwenaka Aluwihare stepped down from the bench citing personal reasons, thereby reducing it to a two judge bench. Justices Eva Wanasundera and Sarath de Abrew had then sent notice to Chief Justice K. Sripavan requesting for direction. Within a short span of time, CJ Sripavan responded with another notice directing the two judge bench to carry forth with the proceedings.

Attorney-at-Law Romesh de Silva, appearing on behalf of Gotabhaya Rajapaksa, subsequently presented his submissions to the bench. He claimed that the Financial Crimes Investigation Division (FCID) was ultra vires (exceeding jurisdiction) and therefore, all its actions were illegal in the eyes of law. He pointed out that every person was entitled to freedom from arbitrary arrest under Article 13 of the Constitution. He further claimed that arresting Rajapaksa was a decision that was taken by the National Executive Council in a politically motivated move, and therefore he should be safeguarded from arbitrary arrest.

Deputy Solicitor General, Arjun Obeysekara, speaking on behalf of the respondents, claimed that the FCID was formed in accordance with the Police Ordinance under the purview of the Inspector General of Police (IGP) upon the direction of the Cabinet of Ministers. He further asserted that the FCID was an independent body that was remotely affiliated with any kind of politics.

Nevertheless, the two-judge bench held in favour of the petitioner and granted him interim relief preventing him from being arrested until his case had been concluded. The Petitioner had also cited Prime Minister Ranil Wickremesinghe and the members of his cabinet, Presidential Secretary P.B.

Abeykoon, IGP N.K. Illangakoon, Director of CID, B.R.S.R. Nagahamulla, DIG of FCID, Ravi Waidyalankara and the Attorney General as Respondents.

They were all ordered to file objections on 17 July, and the case is to be taken up on 6 October this year.

Ranil’s opinion

Prime Minister of the Country, Ranil WIckremesinghe made a strong comment on Thursday (14) questioning the legitimacy of the stay order issued by the Supreme Court in the case. He claimed that although he had not received the official notice of the order, he had detected a few flaws with the ruling. He is also alleged to have stated that he would request for further instruction from Commonwealth judges and legal experts on the matter.

“If the case is to be taken up in October, there is a possibility of there being a new Cabinet before a new Parliament. The legal maxim ‘Justice delayed is justice denied’ applies in this case, and therefore I feel that it may result in the denial of justice”, Wickremesinghe said.

He claimed that there was another defect he had identified in this ruling. “Under Article 132 (2) of the Constitution, there must be a minimum of three judges if a stay order is to be issued. Two judges are permitted to proceed with the case, but to grant a stay order, you need at least three judges, so there appears to be a problem. Now they have issued an interim order preventing his arrest. If there is a flaw pertaining to Article 132, we will have to discuss with the Attorney General whether the defect would impact the Police”, he said.

Both these comments have no doubt undermined the credibility of the judgement and questioned its legitimacy. However, do these comments bring the court to disrepute? This is the question that requires an urgent response. If these comments do indeed amount to an undermining of the judiciary as a whole, Prime Minister Ranil Wickrememsinghe will be arrested for contempt of court just as S.B. Dissanayake was in 2004.

The Media Secretary of Jathika Hela Urumaya (JHU), Nishantha Sri Warnasinghe had believed that the statements made by Prime Minister Wickrememesinghe were tantamount to contempt of court. The statement had received much criticism from other politicians too.

An analysis of the statements

The Prime Minister was right in stating that Article 132 (2) required a bench of three judges in exercising its jurisdiction. Article 132 (2) reads:

“The jurisdiction of the Supreme Court may be exercised in different matters at the same time by the several Judges of that Court sitting apart: Provided that its jurisdiction shall, subject to the provisions of the Constitution, be ordinarily exercised at all times by not less than three Judges of the Court sitting together at the Supreme Court”.

However, what the Prime Minister had failed to notice was the word ‘ordinarily’. Here, I must admit that it is not in my capacity to interpret the word in light of the Constitution on behalf of the Supreme Court.

Nevertheless, any question pertaining to the Constitution falls under the purview of the Supreme Courts, and any clause that appears to be ambiguous is subject to statutory interpretation.

In this case, there had been three judges at the time of commencement before Justice Buwenaka Aluwihare had stepped down. The remaining judges sent notice to the Chief Justice and were thereby directed to proceed forth with the case. Prime Minister Wickremesighe acknowledges this factor when stating that two judges may hear the case, but may lack jurisdiction in delivering a stay order.

He also missed out on Article 119 (2) of the Constitution which states that the Supreme Court shall have power to act and its actions must not be called into question by reason of a defect in the appointment of a judge.

The comment of the Prime Minister called into question the authority of the courts in delivering a stay order, which it is empowered to do. The Media Secretary of the JHU, Nishantha Warnasinghe obviously felt that it was a slur on the judiciary.

The more compelling issue however, is his direct comment on the Supreme Court’s decision to hear the matter on 6 October. His statement sought to criticize the ruling of the Supreme Court and claim that justice may possibly be denied due to the prolonged time period.

Contempt

The two issues raised by Ranil Wickremesinghe are indeed compelling and give the people of Sri Lanka an opportunity to truly scrutinize the independence of the judiciary. The Maithripala Sirisena led new government had promised to uphold the independence of the judiciary in its endeavour to establish good governance.

In this instance, it is necessary to scrutinize the statements in line with laws pertaining to contempt of courts. The laws on contempt are authenticated by Article 105 (3) of the Constitution which reads: “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 Supreme Court is not limited by any clear set of rules on contempt as there are no legal enactments on the subject. This gives the Supreme Court overarching leverage on the matter. Nevertheless, contempt of court can be defined as any wilful disobedience or disregard of a court order or any misconduct in the presence of a court or any action that interferes with judge’s ability to carry out proceedings or any insult on the dignity of the courts.

The courts do enjoy much discretion on the matter, but the courts have also permitted fair criticism on the subject. In the Indian case of Rustom Cowasjee Cooper v Union of India, courts claimed that courts did not have immunity from fair criticism. It claimed that such criticism, no matter if they were strong, would not attribute improper motives tending to bring judges or courts to disrepute.  In this case, the

Indian Union Minister had made very strong comments on a court ruling. Regardless, the courts let him off with a warning.

The Sri Lankan courts have been a little stricter in putting up with contempt of court issues though. In 2003, the fundamental rights petition filed by Michael Anthony Fernando backfired when he was arrested for objecting to the participation of the Chief Justice in the bench. When he took up the matter with international human rights agencies that too was criticized by the courts. This depicts the jurisdiction of the courts in relation to contempt.

In the more famous case of S.B. Dissanayake in 2004, Chief Justice at the time Sarath N. Silva stated:

“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, but a speech clearly intended to scandalize the court itself and to bring the decision of the court into ridicule and contempt”.

In the case of R v Duffy ex parte Nash, courts said that there must be a real risk as opposed to a remote possibility that the statement was calculated to prejudice a fair hearing.

Reading Wickremesignhe’s comments in line with these rulings, it appears that he may have attempted to bring the Supreme Court into disrepute. His statements sought to influence and sway the decision of the Supreme Court in his favour by promulgating his opinion to the public. Stating that he would seek the opinion of the Commonwealth legal fraternity too could be construed as an attempt to undermine the ruling of the local courts.

Conclusion

Perhaps Ranil WIckremesinghe ought to have filed an intervening order in courts as Nishantha

Warnasinghe had pointed out. His comments to the media pointing out assumed flaws of the judiciary gambles with the idea of potential bias. Perhaps, if he believed there were flaws, he should have taken the matter up in a court of law.

The court, of course, should and would be the ultimate judge in determining whether the Prime Minister had indeed acted in bad faith. Now the onus is upon the Supreme Court to initiate and investigate the statements of the Prime Minister and prove that the judiciary is truly independent of political influence.