Focus on Rights

Chicken faeces and contempt of court; where are the lines drawn?
In "The Comedians", (1965, Viking), a darkly satirical story about Haiti during 'Papa Doc" Duvalier's time, Graham Greene writes about the theft of a coffin by Duvalier's thugs, the Tonton Macoutes, (the term appropriately enough, translates into bogey-men), known for the sunglasses that they wear all the time as well as for their chilling propensity to kill and maim.

The coffin contains the body of a dead man, a former Minister who was unwise enough to anger Duvalier. Upon witnessing this bizarre incident where the coffin is snatched away from under the eyes of the widow and her son who was accompanying the body for the burial, the story's main character questions his man-about-the-house as to why a body needs to be stolen. The latter replies that this is because Duvalier keeps all the men who he has killed in his palace to work for him, using voodoo. "So nobody will attack him at night with the zombies there to protect him...they are better than guards, better than the Tonton Macoutes" he explains.

Greene is describing no fictional belief here though the story itself is a novel. These indeed, were the popular notions that prevailed during that time when the ordinary people believed that to go against "Papa Doc" was to give up the ghost not only in terms of earthly living but in its spiritual manifestation as well. The belief exemplifies the nature of the absurdity that is brought into being during times of extreme abnormality. It is the phenomenon of the insecure which employs such strategies to protect itself where the ordinary rules of functioning are deliberately displaced, making it essential to quell revolt, which would have been otherwise manifested. Its application can extend to institutions as well as to human beings.

While it is not my intention to draw immediate parallels between Papa Doc Duvalier's use of voodoo and mind tricks with the primary issue being discussed in this column, the thread of surreal absurdity that runs through both cannot be denied. What we have as relevant to the current context is an extraordinary event emanating from an incident at the Marawila Magistrate's Court on December 6, 2004.

Writing about this event, the Hong Kong based Asian Human Rights Commission (AHRC) describes it thus; "Over twenty remand prisoners had come to attend to their individual cases. As is customary, they were brought by the remand prison bus and placed in the court's holding cell. Once the prisoners were placed in the cell some sat down, as is usual when waiting for their cases to be called. It was not long before they noticed a foul smell and those who were seated rose up to examine their clothes. What they found was chicken faeces all over the backs of their shirts and clothes and looking further about they found chicken faeces all over the floor of the cell. Not surprisingly, there was a bit of unrest in the cell and the guards were told by the prisoners about what they had found. However, the remand prison guards were unwilling to do anything as it meant opening the holding cell, which is usually only done to get each prisoner separately when their names are called by the court.

After a while, the information about the incident reached the Magistrate who ordered the prisoners to be taken to the Remand Prison bus and in the meantime the cell itself was to be cleaned. After this was done the remand prisoners, wearing the same clothes because they did not have anything to change into, were returned to the cell.

Then the court resumed and the cases were called as usual. When the prisoners came to answer the charges against them, they were shocked when the Magistrate began to order jail sentences on each of the prisoners for contempt of court relating to the chicken faeces incident. The prison sentences ordered for contempt of court varied from about six months to one year and no reasons were given either for the court order or for the variation of the sentences. The prisoners were not even told that they had been charged with contempt of court but when their cases were called the prison sentences were announced. The Magistrate prepared written minutes in the same case filed under which they were charged, stating that they had been subjected to these sentences for contempt of court."

The AHRC asks some pertinent questions including as to why the court did not follow due process before sentencing, why varying sentences were imposed on the prisoners and why no inquiry has been yet held as to how the chicken faeces came to be in the cell in the first place? The organisation notes that, in fact, it is not the prisoners who should have been charged but rather, those who used the remand cell in this manner which could only have been done either by some court employees or with their knowledge.

It points out that this incident of sentencing the prisoners needs to be fully investigated and states that the use of contempt of court proceedings in this manner ridicules not only the law on contempt of court but also courts as a whole.

These questions are part of a wider debate. In this particular case, powers given by the Code of Criminal Procedure (CCP), (read with the Penal Code) in respect of proceedings where offences affect the administration of justice and where court sittings have been interrupted or insulted, appear to have been utilised. The factual assessment of the disturbance (ie; the natural indignation of the remand prisoners in finding chicken faeces all over their clothes and body, obviously manifesting in some manner of uproar inside the remand cell as opposed to the perturbation of the judicial officer in being apprised of the situation) is relatively simple. However, the question is whether contempt powers should have been exercised in the summary manner in which they are alleged to have been but which question this column is constrained from examining beyond a point due to the fact that the appeal is currently pending before the High Court. In the meantime, the remandees are currently serving out their sentences for contempt.

Differentiated from the precise nature of the pending appeal are certain general principles that are important. Firstly, the fairness of the procedure. In a draft Contempt of Courts prepared by civil society organisations some one and a half years back, the point was made that contempt proceedings whether in the Supreme Court or in any other subordinate court cannot constitute an exception to the fair trial principle, necessitating all the required elements of a proper charge, right to counsel and so on. Infringement of this principle involves a violation of Article 13(3) of the Constitution as this amounts to the denial of a fair trial.

Secondly, there is the question of remand prisoners as necessarily distinguishable from convicted prisoners. Though the Sri Lankan Constitution does not expressly provide for the rights of detained persons, this is an implicit right that is, in any event, specifically articulated in Article 10 of the International Covenant on Civil and Political Rights (ICCPR) which we are subject to in international law. ICCPR Article 10(1) mandates all persons deprived of their liberty to be treated with humanity and with respect for their inherent dignity and also recognises the separateness that ought to be accorded to remand prisoners by stating that they shall be kept separated and subjected to separate treatment as appropriate to their status. International jurisprudence in relation to these principles has been unequivocal in upholding their substance.

Generally, there persists the need for reform of the laws of contempt and the procedures relating thereto as well as appropriate training for judicial officers therein. In the long term, where contempt of court powers are used arbitrarily or unwisely, the primary result will be the loss of public respect for the administration of justice itself, which further erosion, this country may not be able to stand.

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