Judicial accountability and the unprecedented public response to restore independence of the judiciary is one of the core public issues in Sri Lanka. The public debate has captured many important issues including the concept of Contempt of Court.
Of the recent legal cases, the Tony Fernando case attracted national and international attention specifically on the question of whether the summary punishment meted out to him was draconian and whether Fernando’s liberty was violated without sufficient recourse, when he was sentenced to one year Rigorous Imprisonment.
Having acknowledged the issues involved in the Fernando case and the far reaching impact they created, TISL was extremely concerned about the outcome of the case, especially related to the issue of the responsibility of the State to ensure judicial accountability.
TISL was of the view that an absence of a specific contempt of court legislation was among the key systemic issues leading to abuses of contempt of court procedures. Mr. Tony Fernando made representations to the United Nations Human Rights Committee (UNCHR) under the Optional Protocol to the International Convention of Civil and Political Rights. In its Communication of Views, the UNHRC has pointed out that no reasoned explanation has been provided by the court or the State party as to why such a severe and summary penalty was warranted in the exercise of the court’s power to maintain orderly proceedings. Article 9(1) of the Covenant forbids any arbitrary deprivation of liberty. The imposition of a draconian penalty without adequate explanation and without independent procedural safeguards falls within that prohibition.
UNHRC particularly held that “an act constituting a violation of Article 9(1) is committed by the judicial branch of government cannot prevent the engagement of the responsibility of the State party as a whole.” While endorsing this view, TISL considers this an opportunity for legislative changes to enact a composite Contempt of Court statute with specific guidelines on procedural and substantive law. TISL urges the government and all policy making bodies to give highest priority to the enactment of this law which is now an international obligation.