A. M. E. FERNANDO v. THE ATTORNEY-GENERAL

007-SLLR-SLLR-2003-V-2-A.-M.-E.-FERNANDO-v.-THE-ATTORNEY-GENERAL.pdf


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A.M.E. FERNANDOv
THE ATTORNEY-GENERAL
SUPREME COURTS.N.SILVA, CJ.
EDUSSURIYA, J. ANDYAPA, J.
SC (FR) 55/20032ND JUNE, 2003
Fundamental Rights – Ex facie curiae – Contempt of court – Power ofSupreme Court – Constitution, Article 105(3) – Grossly irregular behaviouragainst authority of court – Disturbing proceedings of court – Summary pun-ishment without trial – Motion for review of punishment.
The petitioner an employee of the Y.M.C.A. had a fall and suffered injuries dur-ing employment. He sought compensation. The Deputy Commissioner ofWorkmen’s Compensation held an inquiry in the course of which the disputewas settled for the payment of Rs.4947/- to the petitioner by the Y.M.C.A.However, the petitioner refused to accept that sum which had been depositedwith the Commissioner. The petitioner walked out threatening to file a funda-mental rights case. He then complained to the Human Rights Commission (theHRC). After obtaining the observations of the Commissioner the HRC declinedto proceed with the application.
Thereafter, the petitioner complained to the Ombudsman who consulted theJudicial Service Commission (“the JSC). The JSC informed that it had nopower to grant relief as it was a judicial order in respect of which relief shouldbe sought before a higher court.
Next, the petitioner filed four fundamental rights cases.
Against the Attorney-General and the Deputy Commissioner ofWorkmen’s Compensation for failure to vacate the settlement by theDeputy Commissioner.
Against the Attorney-General and the Ombudsman with the same mate-rial but without specifying the right which was infringed.
Against the Attorney-General, the JSC, the Registrar of the SupremeCourt (“the RSC’’) for alleged failure to list certain motions but withoutsetting out the fundamental right which was infringed.
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A.M.E. Fernando v The Attorney-General
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SC(FR) 55/2003 against the Attorney-General, the JSC and itsChairman, the RSC and two of the Judges of the Supreme Court whohad dismissed the 1st and 2nd petitions above named on the groundthat the court had no jurisdiction regarding the impugned order as it wasa judicial order.
The 3rd application had been dismissed for want of compliance with the Rulesof the Court and for want of material to substantiate the petitioner’s complaint.
The Y.M.C.A. had not been made a party to these applications.
In SC (FR) 55/2003 the petitioner appeared in person. When the courtexplained to him the reasons for his failure in the earlier cases and that he wasacting in abuse of the process of court in persisting in filing more applications,the petitioner raised his voice and said in loud language that he should beallowed to proceed with the case. He persisted in disturbing the proceedingsof court from the bar table, in spite of a warning that he may be dealt with forcontempt; whereupon, the court made order dated 6.2.2003 finding him guiltyof contempt and sentenced him to 1 year Rl.
Held :
Where a person is guilty of gross misbehavior in court and disturbs theproceedings it constitutes “ex facie curiae" (contempt in the face ofcourt) for which he is liable to be summarily judged and punished, with-out a formai charge.
There is an absence of expression of regret with an undertaking that thepetitioner would not repeat such conduct even though the petitioner’scounsel was himself informed of such requirements, to consider mitiga-tion. As such there are no grounds for mitigating the impugned order orthe punishment.
The motion for review of the impugned order should be refused.
Per S.N. Silva, CJ
“I would cite the words of Lord Denning referred to above “to maintain law andorder the judges have and must have the power at once to deal with those whooffend against it. It is a great power – a power instantly to imprison a personwithout trial – but it is a necessary power.”
Cases referred to :
A.G. v Times Newspaper Ltd (HL) (1974) AC 273, 302
Morris v Crown Office (1970) 1 AER 1079
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APPEAL from the Order of the Supreme Court dated 6.2.2003.
Elmore Perera with Buddhika Kurukularatne and D. Senaratne forpetitioner.
Cur.adv.vult
July 17, 2003
SARATH N SILVA, C.J.
A petition has been presented seeking a review of the judg- 1ment dated 6.2.2003. We heard submissions of counsel on2.6.2003 and reserved the order in respect of the petition.
It is necessary at this stage to set down the facts relevant tothe matter in brief. The petitioner was an employee of the YoungMens’ Christian Association (Y.M.C.A.) as its Secretary attached tothe Dehiwala Branch and later the Colombo Central Branch. Whilstengaged in that employment he had a fall and suffered certaininjuries. He filed an application in terms of Workmens’Compensation Act for redress in respect of the injuries that were 10suffered by him. The Deputy Commissioner, Workmens’Compensation held an inquiry into the petition. The petitioner andthe Y.M.C.A. were represented by attorneys-at-law. On 22.10.1997,a settlement was entered into between the parties before theDeputy Commissioner of Workmens’ Compensation, in terms ofwhich the petitioner was to be paid a sum of Rs.4947/- in lieu of hisclaim, by the Y.M.C.A. When the matter was called before theDeputy Commissioner on 9.1.1998, the petitioner refused to acceptthe money which was deposited with the Commissioner. TheDeputy Commissioner has in letter dated 27.5.1998, filed by the 20
petitioner stated that the petitioner refused to accept the moneyand walked out stating that he would file a “fundamental rightscase” against the Deputy Commissioner of Workmen’sCompensation.
Thereafter the petitioner made a complaint to the HumanRights Commission of Sri Lanka, in respect of the proceedingsbefore the Deputy Commissioner of Workmens’ Compensation.
The Commission called for the observations of the DeputyCommissioner of Workmens’ Compensation and after consideringthe available material by letter dated 31.1.2001 informed the
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petitioner that the Commission “is unable to proceed with the com-plaint in terms of the powers vested in it by the Human RightsCommission of Sri Lanka Act, No.21 of 1996”.
It is to be noted that in this complaint the petitioner makes noreference to the Y.M.C.A. being the organization in respect of whichhe originally sought relief from the Commissioner of Workmens.’Compensation.
Thereafter the petitioner made a complaint to theOmbudsman stating inter alia that there should be a public apolo-gy given to the petitioner by the Deputy Commissioner of 40Workmens’ Compensation and the Human Rights Commission ofSri Lanka. The Ombudsman having sought the views of the JudicialService Commission informed the petitioner that no relief can begranted in the matter.
The Judicial Service Commission informed the Ombudsmanthat it has no power to grant relief by way of an appeal, revision,review or otherwise with regard to a matter pending before a courtor a tribunal or to be decided before a court or tribunal and that anysuch relief can only be obtained upon an appropriate appeal to theHigh Court according to law.so
Thereafter the petitioner commenced the process of filingapplications in this court. He filed four applications in all. They are
S.C.(FR) 644/02, S.C(FR) 645/02 and S.C.(FR) 721/02 andS.C.(FR) 55/03.
S.C.(FR) 644/2002 is against the Hon. Attorney-General andthe Deputy Commissioner of Workmens’ Compensation. It isa complaint that the settlement entered into before theDeputy Commissioner should have been vacated and that bythe failure to vacate the settlement the Deputy Commissionerhas infringed the petitioner’s fundamental rights guaranteed 60by the Constitution. The papers filed by the petitioner are notin order and do not specify even the fundamental right that isalleged to have been infringed by the Deputy Commissionerof Workmens’ Compensation. It is seen that the petitionerhas filed an affidavit and a series of documents with regardto the entire matter.
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S.C.(FR) 645/2002 is filed against the Hon. Attorney-Generaland the Ombudsman which contains a photocopy of thesame affidavit and another series of documents without anyreference to the petitioner’s fundamental right which hasbeen infringed by the Ombudsman.
S.C.(FR) 721/2002 has been filed by the petitioner againstthe Hon. Attorney-General, the Registrar of this court and theChairman, Judicial Service Commission. There is no petitionin this case and no mention is made of the specific funda-mental right that these respondents are alleged to haveinfringed. It is stated in the affidavit that the petitioner com-plained to the Judicial Service Commission to direct theRegistrar, Supreme Court to list certain motions before thecourt and he has failed to do so.
It is to be noted that the petitioner has not made any refer-ence to any grievance that he has with the Y.M.C.A. in any of theabove applications. The Y.M.C.A. is not made a respondent inthese applications and the petitioner’s complaints are only inrespect of the officials who have dealt with his complaint againstthe Y.M.C.A. The petitioner is therefore not prosecuting the relief heoriginally sought from Commissioner of Workmens’ Compensation.His grievance is now turned against the officials, who merely stat-ed that they cannot intervene in the settlement that he entered intowith the Y.M.C.A.
S.C.(FR) 644 & 645/2002, came for support before the ChiefJustice, Justice J.A.N. de Silva and Justice T.B. Weerasuriya, on27.11.2002, and the petitioner appeared in person. The courtentered the following judgment after hearing the petitioner. Sincethe petitioner’s subsequent complaint stems from this judgment Iwould reproduce here the entirety of what has been recorded andsigned by the judges.
“In both matters the complaint is substantially in respect of anorder made by the Deputy Commissioner of Workmen’sCompensation. This is a judicial order which does not attractthe provisions of Articles 17 and 126 of the Constitution. Thecomplainant has a right of appeal to the High Court. Thecomplainant admits that he did not appeal from the impugnedorder.
In the circumstances the complaint is rejected.”
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S.C.(FR) 721/2002 came up for hearing on 14.1.2003 before oiJustice Shirani A. Bandaranayake, Justice P. Edussuriya andJustice J.A.N. de Silva. The petitioner appeared in person and theCourt noted for reasons stated that there is no material before theCourt to substantiate any of the submissions made by thepetitioner that, there has been no compliance with the SupremeCourt Rules in presenting the application and the application wasaccordingly dismissed.
Thereafter the petitioner filed S.C.(FR) Application No.55/2003, the 4th application, being the present case. This was filed 10on 30.1.2003, naming the Hon. Attorney-General, Secretary,Judicial Service Commission, Chairman, Judicial ServiceCommission, the Registrar of this Court, the Chief Justice and theother two Judges who decided in S.C. (FR) 644/02 and 645/02 asrespondents.
The petitioner alleges that the respondents have infringed hisfundamental rights guaranteed under Article 12(1) of theConstitution by not permitting him to support S.C.(FR) 644/02 andS.C.(FR) 645/02 separately. It appears that the complaint of thepetitioner is that these two applications were considered together 20and one judgment was given encompassing both cases. This appli-cation came up before the present Bench on 6.2.2003. The peti-tioner was informed that he cannot persist in filing applications ofthis nature without any basis and abusing the process of this Court.
At that stage the petitioner raised his voice and insisted on his rightto pursue the application. He was then warned that he would bedealt with for contempt of Court if he persists in disturbing the pro-ceedings of Court. Inspite of the warning the petitioner persisted indisturbing the proceedings of the Court from the bar table of theCourt. At this stage for the reasons recorded in the judgment dated 30
the petitioner was sentenced to 1 year R.l for the offenceof committing contempt of Court.
Learned Counsel for the petitioner supported this applicationfor review on 2 grounds-
that no charge was read to the petitioner before he was con-victed for contempt of Court and sentenced in the manner stat-ed above;
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that in any event the sentence is excessive;
Learned Counsel also submitted that the matter should notbe heard by the same Judges since they are biased.
It is clear that the submissions have been made on a mis-conception of the law relating to contempt of Court and the proce-dure applicable in respect of different categories of contempt.Article 105(3) of the Constitution vests the Supreme Court, which isa superior court of record, in addition to the powers of such Court
“the power to punish for contempt of itself whether committedin the court itself or elsewhere, with imprisonment or fine orboth, as the Court may deem fit”.
This provision of the Constitution is based on the commonlaw, which draws a distinction in what is described as criminal con-tempt between, those committed in the face of the Court “In faciecuriae” and, those committed outside court “ex facie curiae" Theinherent jurisdiction of the Superior Courts of England to imposepunishment summarily in respect of contempt in facie curiae is setout in “Oswald’s Contempt of Court' 3rd Ed. Page 8, as follows;
“It is now the undoubted right of a Superior Court to commitfor contempt. The usual criminal process to punish con-tempts was found to be cumbrous and slow, and thereforethe Courts at an uncertain date assumed jurisdiction them-selves to punish the offence summarily, brevi manu, so thatcases might be fairly heard, and the administration of justicenot interfered with. A Court of Justice without power to vindi-cate its own dignity, to enforce obedience to its mandates, toprotect its officers, or to shield those who are entrusted to itscare, would be an anomaly which could not be permitted toexist in any civilized community. Without such protectionCourts of Justice would soon lose their hold upon the publicrespect, and the maintenance of law and order would be ren-dered impossible. Hence it is that the summary power of pun-ishing for contempt has been given to the Courts.”
The authority cited in Oswald is the case of R v Almon decid-ed in the year 1765.
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The basis of exercising jurisdiction in respect of contempt ofcourt, in general has been clearly stated in the judgment of LordMorris of the House of Lords in the case of A.G. v TimesNewspaper LtdS1) as follows:
“…the phrase contempt of court is one which is compen-dious to include not only disobedience to orders of a court butalso certain types of behaviour or varieties of publications inreference to proceedings before courts of law which overstep sothe bounds which liberty permits. In an ordered communitycourts are established for the pacific settlement of disputesand for the maintenance of law and order. In the generalinterests of the community it is imperative that the authorityof the courts should not be imperiled and that recourse tothem should not be subject to unjustifiable interference.When such unjustifiable interference is suppressed it is notbecause those charged with the responsibilities of adminis-tering justice are concerned for their own dignity: it isbecause the very structure of ordered life is at risk if the rec- 90ognized courts of the land are so flouted that their authority
wanes and is supplanted Grossly irregular
behaviour in court could never be tolerated.”
Morris v Crown Office(2) is a specific case of contempt infacie curiae involving an instance of disturbance of Court proceed-ings where the persons responsible for causing the disturbancebeing eleven students were summarily dealt with and imposedterms of imprisonment. Lord Denning MR, dealing with the sum-mary imposition of terms of imprisonment stated as follpws – atpage 1081-100
‘In sentencing them in this way the judge was exerpising ajurisdiction which goes back for centuries. It was welldescribed over 200 years ago by Wilmot, CJ in an' opinionwhich he prepared but never delivered. He said :
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‘…It is necessary incident to every Court of justice to fine andimprison for a contempt to the Court, acted in the face of it…’
That is R v Almon. The phrase ‘contempt in the face of thecourt’ has a quaint old-fashioned ring about it; but the impor-tance of it is this; of all the places where law and order must
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be maintained, it is here in these courts. The course of jus-tice must not be deflected or interfered with. Those who strikeat it strike at the very foundations of our society. To maintainlaw and order, the judges have, and must have, power atonce to deal with those who offend against it. It is a greatpower – a power instantly to imprison a person without trial -but it is a necessary power.”
It is thus seen that the power of a superior Court to deal withsummarily instances of contempts committed in facie curiae isfirmly entrenched in the common law of England with judicial dictaof the highest authority that date back over 200 years. In Sri Lankathis power is given firm recognition in being written into theConstitution, the Supreme Law of the land. When the Court exer-cises jurisdiction summarily, the formalities that attend the exerciseof jurisdiction in a normal criminal matter, such as the framing of acharge, the recording of a plea and the conduct of a trial or inquiryare dispensed with. Learned Counsel made his submission regard-ing the need to frame a charge ignoring this basic characteristic ofexercising jurisdiction summarily in respect of contempt committedin the face of the Court. It would indeed make a mockery of judicialproceedings if a person who continues to disturb the proceedingsin Court after being warned that he would be dealt with, is to havea charge read against him and questioned whether he pleads guiltyor not guilty. It is for this reason that jurisdiction is exercised sum-marily. I would cite the words of Lord Denning referred to above, “tomaintain law and order the Judges have and must have, power atonce to deal with those who offend against it. It is a great power -a power instantly to imprison a person without trial – but it is a nec-essary power.”
The petitioner appeared in person and is entitled to a degreeof latitude by the Court. The warning given that he would be dealtwith if he persists in continuing to disturb the proceedings of Courtis a measure of the latitude that was shown. In fact he continued todisturb the proceedings of Court even after the sentence wasimposed. He finally stopped the continued unruly behaviour onlywhen he was firmly informed that any further disturbance of theCourts proceedings would be dealt with as another offence of con-tempt of court.
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The course of action taken by this Court in dealing with thepetitioner who appeared in person is entirely in accord with the fol-lowing passage in “Oswald on Contempt of Court” 3rd Edition at
page 54-
“Although considerable latitude has been allowed, especiallyin more recent times, to parties conducting their causes inperson, in consequence of their ignorance of the forms ofprocedure, this indulgence should not be extended to permitthem to continue an improper course of conduct after warn-ing from the Judge, nor to use unbecoming or abusive lan-guage.”
Therefore we see no merit whatsoever in the first groundurged by Counsel that a charge should have been read to the peti-tioner before he was punished for committing contempt in the faceof the Court.
The second ground relates to the sentence that has beenimposed. In this regard I would begin by citing the words of LordMorris referred to above. “In an ordered community courts areestablished for the pacific settlement of disputes and the mainte-nance of law and order.” The proceedings in our Courts comewell within this description. The proceedings of our SuperiorCourts are conducted without the presence of any police or secu-rity personnel, armed or otherwise. The only official being astenographer who represents the Registrar. Hundreds of litigantsand members of the public come daily to our Courts and conductthemselves with admirable decorum. Counsel conduct them-selves generally with dignity that befits their office except in thecase of an individual who may be considered an anachronism. Itis clear from the preceding narrative of the facts that the peti-tioner did not come to this Court for a “pacific settlement” of anydispute. His dispute is with the Y.M.C.A. which is not even citedas a party to any of the four applications the petitioner filed in thisCourt. He filed these applications only to implead the judicial offi-cer and the Ombudsman who merely stated the obvious that theycannot intervene to set aside a settlement he had entered intowith the Y.M.C.A. To cap it all, he filed the last case against theJudges of this Court who merely stated the obvious, that juris-diction cannot be exercised in terms of Articles 17 and 126 of the
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Constitution (fundamental rights jurisdiction) in respect of judicialaction.
It was pointed out to counsel that in every case a judge hasto decide a matter in favour of one party and against the other. And,if a party against whom a decision is given is to implead the judge 190in respect of such decision, every judge would have as many casesagainst him as the number decided by him. This depicts the pre-posterous nature of the application filed by the petitioner which byitself is in contempt of the authority of this Court.
Counsel at one stage contended that S.C (FR) 55/03 filed bythe petitioner against the Registrar, the Chief Justice and the otherJudges does not disclose any infringement of a fundamental rightand should have been rejected in chambers by the judges. At alater stage he contended that the Chief Justice should not have saton the bench, since he is named as a respondent in the papers that 200should have been rejected in chambers. These submissions are aconundrum of absurdity which do not require any further consider-ation by this Court.
As noted above, the very act of the petitioner in filing thisapplication against the Registrar and the Judges who heard hisprevious cases is in contempt of the authority of this Court. Whenthe case was called the petitioner walked upto the bar table, placedhis files on the lectern provided for counsel and continued toaddress Court in a loud voice not heeding the warning that wasgiven. He thus came determined to defy the authority of the Court 210and to cause the maximum possible disturbance in the process andcertainly not to seek a pacific settlement of the dispute he had withthe Y.M.C.A which was not even named as a party respondents tothe application. We are therefore of the view that the sentence of 1year was warranted in the circumstances of this case. We havebeen inclined at every stage to mitigate this sentence if the peti-tioner expressed regret and gave a firm undertaking that he wouldnot disturb the proceedings of Court at any stage in the future. Thepetitioner has very clearly refrained from expressing any regreteven in the papers filed seeking review. Counsel was informed by 220Court that the hearing could be adjourned to enable him to obtaininstructions from the petitioner on the matter of expressing regretand seeking a mitigation of the sentence on that basis. Counsel
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specifically declined to take an adjournment for this purpose andconcluded his submissions. In these circumstances we see nobasis to consider a mitigation of the sentence that has beenimposed. The motion for review is accordingly refused.
EDUSSURIYA, J.-1 agree.
YAPA, J.-1 agree.
Motion for review refused.