26th April 1998
The page contains a summary of a fundamental rights decision by the Supreme Court of Sri Lanka as well as reference to a recent judgment in public interest litigation by the Supreme Court of India which is in line with the intention of JUSTICE to focus on developments by national courts in our neighbouring countries
By Kishali Pinto Jayawardena
The first thought that strikes one in the aftermath of the Supreme Court decision ruling that Sri Lanka’s first ever Anti Ragging Bill is unconstitutional is somewhat humorous. Some levity is after all called for, when a bill described as intending to prohibit cruel, inhuman and degrading treatment and punishment in schools and universities is determined by the highest court in the land to violate that very same right itself.
Jokes apart however, it is important that this decision of the Supreme Court be taken in its proper context, more so in the present environment of volatile university politics where some may see the determination as a misconceived victory for their cause. The Bill has a particularly violent history where incidents of severe ragging leading to at least two deaths in higher educational institutions led the government to direct that a committee of legal experts draft necessary laws to ban ragging in universities and schools. A Bill was then drafted but was immediately challenged in the Supreme Court by a student body of the University of Sri Jayawardenepura and a university student on the basis that it violated their rights to equality and freedom of expression.
Last Tuesday, the decision of a Supreme Court bench consisting of Justices Mark Fernando, A. de Z. Gunewardene and D.P.S. Gunesekera that the Bill is unconstitutional was made public by the Speaker in Parliament.
The Anti Ragging Bill was ruled to violate not only the right to equality but also the right to be free from cruel inhuman and degrading treatment and from arbitrary detention and punishment. In addition, certain provisions of the Bill were determined to infringe the constitutional provision that directs that the judicial power of the people be exercised by the judges, and consequently had to be passed not only by a two thirds majority in Parliament but also by the people at a Referendum.
In actual terms, the displeasure of the Court was very simple. It has agreed in the main, with the reasoning behind the Bill as to what action ought to be prohibited, but has drawn the line at certain procedures specified relating to detention and punishment. The Bill made it an offence for any student or staff member to commit or participate in ragging within or outside an educational institution. Ragging was defined as any act which causes or is likely to cause physical or psychological injury or mental pain or fear or embarrassment to a student or a staff member and would include verbal abuse. Again, verbal abuse was said to mean the use of words which are in contempt of the dignity and personality of a student or a staff member. The Bill also provided for an enhanced punishment in any case where ragging was accompanied by sexual harassment or grievous hurt. Sexual harassment was defined to include the use of words or actions that cause sexual annoyance to a student or member of the staff.
In their arguments before the Supreme Court, the petitioners had pointed out that this definition was too wide and that minor acts or omissions could be penalized as a result. They objected to words like “dignity”, “personality” and “contempt”, saying that acts and words critical of the conduct or a student or member of the staff could be caught up in the process.
The Supreme Court however, preferred to agree with lawyers for the state who explained that these words would be construed in the same manner as in a case of civil defamation where they have been interpreted in a very definite manner.
“Students, specially newcomers, are entitled to have their personality respected by not being subjected even to words which affect their dignity and personality, whether these words are obscene, abusive, derogatory, humiliating, degrading or contemptuous” the Court said
The restrictions thus imposed were said to be necessary restrictions on the freedom of speech in the securing of due recognition and respect for the rights and freedoms of others. However, the Court was not happy with the inclusion of the word “embarrassment” in the definition of ragging, remarking in somewhat poetic language that “ the mischief which the Bill seeks to prevent is embarrassment that brings tears to the eye or distress to the mind, but not that which merely brings a blush to the cheek” It was recommended that “embarrassment” be changed to “humiliation”, “suffering” or “distress”.
The broad sweep of the Bill as far as the definition of ragging and of sexual harassment was concerned was therefore substantively upheld by the Supreme Court. What drew the wrath of the Court were certain provisions of the Bill that imposed excessively severe punishments on the offenders.
The Bill created the offences of criminal intimidation, wrongful restraint, unlawful confinement and sexual harassment in relation to ragging generally corresponding to similar offences in the Penal Code. However, there was great disparity in the punishments imposed by the Bill and by the Penal Code. One example of this was where the offence of sexual harassment in the Penal Code was defined in a more serious manner than the Bill but a maximum punishment of five years was specified while the Bill laid down a minimum period of five years. This would mean that even where a trial judge felt that a lesser punishment should be imposed on a person convicted of ragging which included mild sexual annoyance, he or she would be compelled to impose a sentence of five years. The judge would be compelled to impose identical sentences of five years both where he thinks it is appropriate as well as most inappropriate.
The Court confessed itself to be at a loss to understand why such harsh sentencing had been resorted to, stating that if there had been judicial leniency in these cases before, it might have been understandable, but in the absence of such laxity, the draft provisions are puzzling. Moreover, the Bill also permits additional punishments in that together with this mandatory minimum sentences, school children or students convicted of ragging would also be automatically expelled from the school or institute. University students would in addition be unable to enter any other higher educational institution for the rest of their lives.
The Supreme Court acknowledged that
“ Ragging has for too long been cruel, inhuman and degrading. Our society has been unable to deal with the root causes of ragging, and the anxieties, fears and frustrations of youth on which ragging has fed and flourished. Ragging warrants severe and deterrent punishment.”
However, the Court went on to state that such punishments must be just and commensurate with the offence.
“ It cannot be a cruel or inhuman over reaction to the problem” their Justices said.
It was these provisions on mandatory minimum sentences that the Court ruled infringed the right to freedom from cruel, inhuman or degrading treatment requiring them to be passed not only by a special majority in parliament but also by the people at a Referendum. The fact that the Bill imposed lifelong disability in entering any other higher educational institution on students convicted of ragging but did not impose similar disabilities on staff members guilty of the same offence was also said by the Court to violate the right to equality.
The other main ground on which objection was raised, again related to judicial discretion being taken away, this time in relation to bail. The Bill specified that a suspect accused of ragging be compulsorily remanded for a period of six months, with no judge being given the power to grant bail even in exceptional circumstances. This provision was conceded by state counsel in court to be unique in that similar provisions do not exist in any other law in Sri Lanka. Here again, it was recommended that the decision whether to remand an alleged offender or release him on bail be left in the hands of the trial judge.
Responding to the Supreme Court decision, Parliament on Wednesday made the necessary amendments and passed the Bill. All references to mandatory minimum punishments were deleted and discretion to grant bail vested in a judicial officer. It is interesting to note that while ragging has been redefined to exclude embarrassment, the fact that it could encompass verbal abuse has also been deleted, by the House in an abundance of caution. Meanwhile, the disability imposed on university students convicted of ragging in not being able to enter another higher educational institution has also been removed.
The passing of the Bill is however of small import. There are greater issues here. Like in the Broadcasting Authority Bill case, the acknowledgement of counsel appearing for the state in court that certain provisions of the Bill were clearly illegal raises the question as to how such obviously flawed provisions pass by the filtering mechanisms of expert committees, the Attorney General’s Department and the Legal Draftsman’s Department.
That this Bill was challenged within that all important one week period was due to its controversial nature. Other similarly unconstitutional bills are passed with impunity and with citizens having no knowledge of them being placed on the Order Paper of the House. That stricter monitoring mechanisms have to be set up is obvious. That the law has to be changed is even more obvious.
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