The Governing Council of the Inter-Parliamentary Union,

Having before it the case of Mr. D.M.S.B. Dissanayake, a member of the Parliament of Sri Lanka at the time of the events, which has been the subject of a study and report of the Committee on the Human Rights of Parliamentarians in accordance with the "Procedure for the examination and treatment, by the Inter-Parliamentary Union, of communications concerning violations of human rights of parliamentarians",

Taking note of the report of the Committee on the Human Rights of Parliamentarians (CL/177/11(a)-R.1), which contains a detailed outline of the case,

Taking account of the October 2005 report of the Superintendent of the Welikada Prison as provided by the Sri Lankan delegation to the 113^th IPU Assembly,

Considering the following information on file:

• On 3 November 2003, at a critical political juncture in Sri Lanka, Mr. Dissanayake made a speech in which he stated, in reference to the President of Sri Lanka, "now she is asking the court whether the office of Defence Minister belongs to that Defence Minister, whether the power to issue directions to the armed forces belongs to her. Whatever decision is given by the Supreme Court… I would like to tell the Supreme Court that the Government of the United National Party does not even accept that that is a question that can be referred to the Supreme Court. We say that we do not accept any shameful decision that it gives. Therefore our Minister of Defence should remain where he is." Mr. Dissanayake affirmed that his speech was not disrespectful to the Court and that, if anything, it related to an opinion of the Supreme Court, which was for the first time ever exercising its consultative jurisdiction under Article 129(1) of the Constitution, and not to a decision of the Court;

• On 4 November 2003, the government parliamentary group presented the Speaker with a motion signed by over 100 members of parliament, including Mr. Dissanayake, for the removal of the Chief Justice on 14 grounds of misbehaviour;

• Following a complaint by four individuals, on 7 December 2004 the Supreme Court, on which the Chief Justice sat as a member, sentenced Mr. Dissayanake to two years' rigorous imprisonment for the offence of contempt of court, punishable under Article 105(3) of the Constitution, in relation to his speech of 3 November 2003. Since the Supreme Court is the highest and final superior court of record in the Republic, the sentence is not open to judicial review;

• As a consequence of the sentence, pursuant to Articles 66(d) and 89(d) of the Constitution, Mr. Dissanayake has ceased to be a parliamentarian, and he is currently serving his sentence in Welikada Prison, Colombo,

1. Thanks the Sri Lankan delegation for its cooperation;

2. Recalls that it is now a well-established doctrine that, while certain limited restrictions may be placed on freedom of expression to ensure and protect the authority and impartiality of the judiciary, the latter is a public institution and, as such, must be open to public criticism; and affirms that such criticism may even be instrumental in ensuring the independence of the judiciary and respect for the law;

3. Considers that in highlighting his disagreement with the invocation, for the first time ever, of the consultative jurisdiction of the Supreme Court, Mr. Dissanayake merely criticized what was after all a highly unusual situation in Sri Lanka, and exercised his right to freedom of speech;

4. Notes moreover the presence on the panel which judged Mr. Dissanayake of the Chief Justice who had earlier been strongly criticized by Mr. Dissanayake and his party; considers it highly questionable that, in the circumstances, the panel can be considered an independent and impartial tribunal; and recalls in this respect the important principle that justice must not only be done, but also be seen to be done;

5. Consequently also expresses deep concern at the harsh penalty handed down on Mr. Dissanayake by the Supreme Court, which it considers totally disproportionate to the alleged offence; affirms that such judicial action may have a damping effect on freedom of expression as such, and thus be detrimental to that free exchange of ideas without which there can be no true democracy;

6. Is alarmed that Mr. Dissanayake is denied the possibility of raising these fundamental issues in an appeal, which in itself is a crucial element of fair trial, and may thus be deprived of his liberty for two years in the absence of any legal justification, and his constituents deprived of representation for this period;

7. Firmly believes that any parliament has a particular interest in ensuring that its members, irrespective of party affiliation, may freely express themselves without fear of reprisal by the other branches of government, as otherwise the very independence of the institution would be at stake; calls on the Sri Lankan Parliament to take this matter into serious consideration by ensuring that the right to appeal is guaranteed by law to everyone under all circumstances; would appreciate receiving observations in this respect;

8. Takes note of the prison report regarding Mr. Dissanayake's conditions of detention and visitors' access; would appreciate receiving a copy of the applicable prison regulations;

9. Requests the Secretary General to convey this resolution to the parliamentary and other competent authorities, inviting them to provide the requested information;

10. Request the Committee to continue examining this case and report to it at its next session, to be held during the 114^th IPU Assembly (May 2006).

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