Kanag Iswaran PC takes up preliminary Objection

 By S.S. Selvanayagam

Senior Counse K. Kanag Iswaran PC took up a preliminary objection based on the Constitution on the jurisdiction of the Court of Appeal to proceed with the Contempt of Court allegation.

President’s Counsel Kanag Iswaran contended that it is not prudent for contempt proceedings in the absence of SC-CA Rule and mode of procedure.

He maintained there is no procedure established by law for the prosecution of offences of contempt of court either in the Supreme Court or the Court of Appeal under the 1978 Constitution.

He submitted that under Article 136 1(b), the Supreme Court is mandated to frame rules of Court for every Jurisdiction conferred by the Constitution on the Supreme Court and the Court of Appeal.

He stated that consequently the Supreme Court has made Rules for the Supreme Court and the Court of Appeal.

However no rules have been made to date for the exercise by either the Supreme Court or the Court of Appeal in respect of the jurisdiction conferred on those courts for punishing the offence of contempt of Court, he asserted.

Though the Supreme Court and the Court of Appeal have been conferred under Articles 105(3), the jurisdiction or power to punish for contempt, no procedural rules have been made by the Supreme Court as mandated by Article 136 1 (b),he said.

The liberty of a person under the constitution cannot be deprived except according to procedure established by law which is guaranteed under Article 13 of the constitution and read out in support a passage from the book on Fundamental Rights written by Former Chief Justice Sharvananda, he pointed out.

The Court of Appeal has acted without jurisdiction in issuing a process stating it is issuing Notice, Summons and Rule all in one document and that there is no procedure under which this could have been done, he stated

He submitted that there are no rules formulated to issue notice in contempt or rule or summons.

Summons is issued under the civil procedure code and that too by the High Court and District Court only and not by the Supreme Court or the Court of Appeal, he stated.

This is a procedure unknown to law as procedure of issuing summons for contempt of Court which is in the civil procedure code only and there is no Application to the Supreme Court or the Court of Appeal, he stated.

For the Court to issue notice and/or rule, there are no rules of Court framed under Article 136 B framed for the Court of Appeal in respect of Contempt of Court, he argued.

He took three Preliminary Objections that the Petition of the Petitioner for contempt of Court was null and void and of no course of effect in law as it has not invoked any procedure established by law in terms of Article 13 of the Constitution.

He submitted therefore that Court of Appeal acted without jurisdiction in issuing process and that hence the Court must recall all processes issued and dismissed the Petition of the Petitioner for contempt of Court.

He submitted the historical reception of contempt of Court in Sri Lanka and traced its development up to the 1978 Constitution including the Constitution of 1972.

The Bench comprising Justices Kumudini Wickramasinghe and Janak De Silva fixed matter to be resumed on 16 October for further submissions.

Kanag Iswaran PC with Lakshmanan Jayakumar instructed by Moahan Balendra appeared for Northern Chief Minister C.V. Wigneswaran.

Suren Fernando and K Ganesharajah appeared for Ananthi Sasitharan, Saliya Pieris PC appeared for K. Sivanesan and M.A. Sumanthiran PC with Niran Anketell for P. Sathiyalingam.