22 October 2003
A Statement by the Asian Human Rights Commission -- AHRC
JUDICIAL ACCOUNTABILITY AND THE CASES OF IRENE FERNANDEZ (MALAYSIA) AND MICHAEL ANTHONY FERNANDO (SRI LANKA)
The former United Nations Special Rapporteur on the independence of judges and lawyers, Dato・ Param Cumaraswamy, expressed serious concerns over judicial integrity in Asia during a speech delivered in Colombo, Sri Lanka, on October 17. In his speech, Mr. Cumaraswamy spelt out the principles of judicial accountability and the need to deal with complaints against the judiciary in order to maintain public confidence in the law. Two recent cases in Asia speak to his concerns: those of Irene Fernandez in Malaysia and Michael Anthony Fernando in Sri Lanka.
Last week, a Malaysian court sentenced Irene Fernandez to a year in prison for publishing a memorandum alleging abuses against migrant workers, after a seven-year trial. In a joint statement, the UN Special Rapporteur on the right to expression, Ambeyi Ligabo, and the Special Representative on human rights defenders, Hina Jilani, called on the Malaysian authorities to review the case, remarking that:
"Irene Fernandez is highly respected both nationally and internationally for her commitment and integrity as a human rights defender and, through her work for Tenaganita (a non-governmental organisation), addresses human rights concerns in the context of health, domestic violence, migrant workers・ rights and family law issues."
Ms Fernandez・ case throws the question of judicial accountability in Malaysia, where judges are promoted for making politically favourable decisions, into sharp relief. The judgement is in fact baseless. As the statement by the two UN envoys indicates, there are no grounds upon which to attribute malice to her or her work, except by way of treating all public criticism as malicious.
In his speech of October 17, Mr. Cumaraswamy made reference to another recent case of concern, that of Michael Anthony Fernando, who was summarily sentenced to a year for contempt of court by the Supreme Court of Sri Lanka this February:
"The excessive use of coercive powers like contempt of court has been a concern in some countries. It was a serious problem in Malaysia a few years ago when lawyers were committed and sentenced. The manner in which this power was invoked summarily by the Supreme Court of Sri Lanka in the Michael Fernando case earlier this year brought the Court into severe criticism from various quarters, including myself. It obviously left a chilling effect on the public・s access to justice and freedom of expression. It even intimidated the legal profession. I am glad that the government has responded to the concerns expressed and has set up a committee to consider the need for legislation on the parameters of contempt of court. That an unrepresented lay litigant attempting to seek justice in the highest court of the land, however misconceived his grievance may have been, could be convicted and sent to prison for one year is beyond belief. The worst form of injustice in any civilised society is injustice perpetrated through the judicial process. It becomes aggravated when the court is the highest in the land as there can be no further appeals and moreover it remains a dangerous precedent for lower courts. Another objectionable feature in that case was that the Chief Justice was a respondent to the petition. However ill conceived that move by the petitioner was, as a matter of principle and in accordance with S.49 (3) of the Sri Lanka Judicature Act, the Chief Justice should have disqualified [himself]. It was his presence to which the petitioner seemed to have objected. He was quite right."
When the absence of judicial accountability threatens the life and liberty of individuals and intimidates society as a whole it becomes a serious issue for everyone, including the international community. The Asian Human Rights Commission has consistently expressed concern over the tendency towards corruption and abuse of power that can be found among certain members of the judiciary throughout Asia. This is not a peripheral matter. It is a central problem to the effective implementation of human rights in this region. When the executive, legislature, and others violate citizens・ rights, the judiciary is their last resort. When the judiciary ignores human rights it becomes a serious impediment to the citizens, and participates in the abuse of power. The international community, including United Nations agencies dealing with human rights, must as a matter of urgency concentrate on the issue of judicial accountability and find ways to redress violations of rights that are sanctioned by the judiciary. A timely beginning could be made by holding to account those members of the judiciary in Malaysia and Sri Lanka responsible for the grave injustices felt by Irene Fernandez and Michael Anthony Fernando.
Asian Human Rights Commission
Posted on 2004-01-09