HRC: Dissanayake v Sri Lanka
19 Jul 2008
The author of the communication who was a Cabinet Minister was charged with contempt of court and sentenced to two years of “rigorous imprisonment”. The HRC found this sentence to be disproportionately severe, thus violating Article 19 ICCPR.
HRC: Dissanayake v Sri Lanka
22 July 2008, Communication no. 1373/2005
|Theme:||Other Content Restrictions|
|Sub-Issues:||Administration of Justice|
|Penalty:||a 2-year prison sentence and temporary restriction of active and passive voting rights|
|Decision:||Violation of Article 19 ICCPR|
|Jurisdiction:||Human Rights Committee: Sri Lanka|
Facts: The author, then Minister of Agriculture, 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 with contempt of court. He was served a “Rule” 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, which found him 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 referred to an earlier charge of contempt against the author for which he was given a warning and admonition by the Supreme Court, but was not convicted. 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 continued 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.
Before the Committee, the author submitted that the sentence of two years rigorous imprisonment imposed upon him was a grossly disproportionate sentence. The author claimed that his right to freedom of expression under Article 19 had been violated, as the restrictions imposed 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 relevant portion of his speech 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 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.
The State party submitted 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 highlighted the previous charge of contempt against the author, when he was a senior Cabinet Minister. 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. The State party submitted that a restriction preventing incidents of contempt of court was a reasonable restriction, which was necessary to preserve the respect and reputation of the court, as well as to preserve public order and morals. The State party also argued 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.
Held: The Committee, in one sentence, briefly concluded that the State party had violated Article 19 of the Covenant, as the sentence imposed upon the author was disproportionate to any legitimate aim under Article 19, paragraph 3. The Committee referred to previous case law, in particular Fernando v Sri Lanka. It is, however, interesting to note that, although in that case the Committee did not consider it necessary to examine whether there was a violation under Article 19, due to a finding of a violation of Article 9, in the present case it did in fact make a separate examination, albeit brief.
The main discussion in the present case was centred on issues raised under Article 9 of the Covenant, concerning deprivation of liberty. In reaching the conclusion that there had been a violation of Article 9, the Committee focused on three main issues: the examination of the precise words used by the author; the fact that this was the author’s second charge of contempt (and it thus appeared that the severity of his sentence was based on both contempt charges rather than the second one alone); and the fact that the proceedings were conducted summarily, resulting in the severe penalty. The Committee found that neither the Court nor the State party had 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.
The Committee found a violation of Article 19, as the sentence was disproportionately severe.
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