Who made that call?

| Manik De Silva

( March 16, 2014, Colombo, Sri Lanka Guardian) Industry and Commerce Minister Rishard Bathiudeen is no doubt happy that the contempt of court charge hanging over his head had been settled on Friday with his expressing his ``highest regard’’ for the judiciary and regretting the unauthorized use of his telephone to make two threatening calls to the then Mannar Magistrate. Bathiudeen has maintained that these calls had never been made by him and his phone has been ``used in an unauthorized manner.’’ The petitioners who sought to have the minister hauled up for contempt were senior lawyers. They had accepted that the use of Bathiudeen’s phone was unauthorized. Clearly a lot of time – over 20 months - had passed since the incidents on July 17 and 18, 2012, and tempers had cooled making the settlement on terms widely publicized by the minister’s press office possible. But one vital matter remains unclear that nobody had sought to investigate and take consequential action. The million dollar question is who made that call?

Everything that has been said implies that what was told to the magistrate by the caller, whoever he was, was contemptuous. The magistrate was transferred out of Mannar soon after the incident and it was reported rightly or wrongly at that time that Bathiudeen wanted him out and had spoken to the Secretary of the Judicial Services Commission about it. Whoever made the impugned call, apparently, had wanted the magistrate to reverse an order he had made on a contentious matter involving Muslim and Tamil fishermen in Mannar on July 17, 2012, and had been intimidating. Given current technology it had been easy enough to establish from where the call originated; and the fact that it had originated from a phone registered under the minister’s name caused great embarrassment to Bathiudeen. Now that the senior lawyers who filed contempt action have accepted that a phone in the minister’s name had been used without his knowledge and authority to make the call, they had moved to terminate the proceedings they had initiated. Undoubtedly a minister making such a call to a magistrate and ordering him to reverse an order is much more serious than any ignorant Appuhamy or Suppiah committing such an offence. Yet we are surprised that neither the petitioners nor the court itself were interested in getting to the bottom of that matter – who made that call?

Many years ago a highly respected and senior journalist was jailed for contempt and spent some months in the Welikada jail where he contracted a disease that led to his premature death. This matter arose over the publication of a newspaper column titled ``Dress Sense’’ questioning the practice of some courts at that time of insisting on a dress code of those who appeared before them. Witnesses (or accused) clad in western dress were required to wear jacket and tie. National dress was, of course, always an option. Many courts adopted the position that if those appearing before them were neatly and cleanly clad, it did not matter if they wore jacket and tie or an open shirt. As we recall, Fred de Silva’s very readable and thought provoking commentary, perhaps with a barb or two included, resulted in three judges of the Supreme Court sentencing him to six months in jail in addition to a fine of a couple of thousand rupees. In fact the commentary remarked on the fact that while one court was faulting a witness over his dress, another who customarily wore white trousers, bush shirt and sandals suitable for a tropical climate like ours, was even then giving evidence in another court in Hultsdorf! And nobody found anything wrong with his dress! Incidentally, President Gopallawa ordered de Silva’s release before he had served his six months but, unfortunately, not before he contracted the infection that led to his early death.

Prior to that there was the case of Mr. Herbert Hulugalle, among the country’s best known and most respected editors, being fined and imprisoned till the rising of court for an editorial he published (but did not write) titled ``Justice on Holiday.’’ Happily, the court rose moments after it pronounced the sentence. Those were certainly spacious times with many of the British judges of the day strongly inclined to temper justice with mercy. There is no clarity, at least in the public mind, on what constitutes contempt of court. It is widely perceived that judgments cannot be criticized once they are delivered. Experts tell us that this is not the case and that judgments may be criticized as long as such criticism is couched in chaste and temperate language without scandalizing the court. Judgments are often analyzed and dissected as academic exercises in learned forums where it is sometimes concluded that they are in error. Courts can make mistakes and that is why there is an appeal procedure. It is also possible to urge revision of a judgment on the ground that it had been made per incuriam (through lack of care).

Most people, we think, will agree that what happened in Mannar was a flagrant act of contempt unlike Hulugalle’s ``Justice on Holiday’’ or Fred de Silva’s ``Dress Sense.’’ Given that reality, it seems to us that further investigation is required to establish who made that call. Every Tom, Dick and Harry will not have access to a minister’s phone. So some further delving into the matter appears to be in order as would surely have been the case if lesser persons were involved.

( The writer is the chief Editor of the Sunday Island, a weekly based in Colombo, Sri Lanka, where this piece was originally appeared )