Tony Fernando
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COLOMBO, Oct 17 (AFP) - A Sri Lankan trade unionist who was jailed for contempt while challenging Sri Lanka's controversial chief justice emerged a free man Friday to be rewarded with an Asian human rights award.

Anthony Fernando was received with a hero's welcome outside the main Welikada jail in Colombo by Buddhist and Catholic priests as well as human rights activists and politicians who had taken up his cause.
Fernando was jailed in February for a year for contempt of court while arguing a case he had filed against several Supreme Court justices, including Chief Justice Sarath Silva. He was released early for good behaviour.

His imprisonment led the UN special rapporteur on the independence of judges and lawyers, Param Cumaraswamy, to express "shock" at Silva hearing a case against him. "I am not going into the merits of the case. The question here is if it is proper for the chief justice after having been made a party to a case to sit on the panel and adjudicate on the matter," Cumaraswamy said in February. Fernando said his struggle had been for the freedom of expression and the independence of the judiciary.

The Asian Human Rights Commission (AHRC) said it was presenting its inaugural Asian Human Rights defenders award to Fernando in recognition of his struggle for basic freedoms.

"Fernando has found himself in jail because of his determination to uphold principles of liberty with an uncommon sense of courage, seriousness and self-sacrifice," AHRC said in a statement.It slammed the Sri Lankan judicial system headed by Silva, who is a personal appointee of President Chandrika Kumaratunga.

"The serious degeneration of Sri Lanka's judiciary is now a matter of public record, both within the country and internationally," it said. "While the Supreme Court of Sri Lanka is responding to calls for justice with injustice, to date no serious action has yet been taken to reverse the dangerous effects that it is having on the entire judicial system.

"The lives and liberty of all people in the country remain very much at risk. Mr Fernando's example is therefore of supreme importance, and it is for this reason that the AHRC today lauds him as an exemplary human rights defender worthy of recognition, honour and emulation."


Jailed activist hailed as hero as he walks tall and free
    By Sajeewan Wijewardana , Daily Miiror- Saturday 18th Oct

Activist Tony Fernando who had been jailed by the Supreme Court for contempt emerged from the Welikada Prison at noon yesterday as a virtual Human Rights hero.

Top legal personalities, politicians and members of the clergy had gathered at the main gate of the prison to greet and garland Mr. Fernando as he came out after completing his one year term. Among those present were the internationally known jurist Desmond Fernando, LSSP parliamentarian Ven. Samitha Thero, NSSP leader Vasudeva Nanayakkara and several members of the Catholic clergy.Mr. Fernando and Mr. Nanayakkara in speeches to mark the occasion hammered out at alleged injustices within the judiciary itself and called for changes and reforms.

Mr. Fernando also slashed out at President Kumaratunga who he said was the only person who could have got him released but she failed to do so. He hailed Prime Minister Ranil Wickremesinghe and said he hoped the Premier would soon become the President.

For his struggle to uphold peoples rights, Mr. Fernando has been nominated by the Asian Human Rights Commission for the award titled 'Defender of Judicial Rights and Judicial Freedom'. The crowd at the gates of the prison carried placards and shouted slogans hailing Mr. Fernando as a people's hero and denouncing injustices. Mr. Fernando said the strong stand he was taking for people's rights and against injustices was not a personal matter but a stand he was taking on behalf of the people of Sri Lanka. Mr. Nanayakkara told journalists Mr. Fernando had been jailed for defending his rights. He said he respected the judiciary but he wished to stress that the judiciary belonged to the people and was nobody's personal property.

Mr. Nanayakkara asked why parliament was silent on what many Human Rights activists saw as an injustice to Mr. Fernando. Mr. Fernando had been jailed for one year by the Supreme Court for contempt when he argued a fundamental rights petition which he himself had filed. The Chief Justice ruled that Mr. Fernando had behaved in a contemptuous way. As he emerged from jail yesterday Mr. Fernando spoke out at what he saw as a shameful jungle law.

Among those who condemned the jailing of Mr. Fernando was Dato Param Coomaraswamy the UN Special Representative on Judiciary and Judicial Freedom.


"This is not a private battle, I fought for all" - Anthony Fernando
     Ranee Mohamed - Sunday Leader-19 October 2003:

His cheeks stained with tears, his red eyes squinting in the unfamiliar midday sunlight, this human rights defender walked out of New Magazine Prison Friday, feeling empty about the system of justice in this country. Making the sign of freedom with his fingers, he looked into the countless cameras before him, with a smile on his face and fresh tears in his eyes.

Michael Anthony Emmanuel Fernando was awarded the Human Rights Defender's Prize by the Asian Human Rights Commission the day before Thursday. Fernando has served a prison term of more than eight months since his summary sentencing for speaking loudly in court and persisting with his fundamental rights application and his objection that the Chief Justice should not be hearing his case since he had been cited as a respondent in the application.

The review petition against his sentencing was dismissed subsequently by the same panel of three judges who had convicted him for contempt. Data Param Cumaraswamy, the outgoing UN Special Rapporteur on the Independence of the Judiciary, has stated that Fernando is a victim of injustice, pointing out that "the Supreme Court of Sri Lanka has done an act of injustice."

But walking out of prison on Friday, Fernando tried to walk tall despite the pain shooting from his spinal cord, which Fernando says is due to being assaulted while serving his sentence.

Permanent Mark

"This is not a private battle, I fought for all. I fought for the rights of all the citizens of this country," he said. But the battle seems to have left a mark on Fernando. Struggling to pull out a diagnosis card, which Fernando claimed, had false dates, he said: "I was beaten mercilessly by some guard in civil clothing. I am suffering from a spinal problem as a result of this attack."

When asked whether he is taking any medication for the pain and injury suffered as a result of this attack, Fernando said the tablets that he has to take every day may make him feel better, but that it can never heal the psychological wounds that hurt him even more.

As his wife Malini and his parents waited impatiently outside from 11 a.m., it was Fernando's five year old son Christopher who could not hide his happiness. "We told him that his father had gone abroad," said 80 year old Oswald Fernando, the father of this defender. "Anthony Fernando is our only child and we are so proud of him," said Oswald Fernando wiping away tears.

But little Christopher seemed to know something more. "My son saw it all happen. He saw me tied to a bed in the hospital. He saw my suffering," said Fernando, hugging his little son. "He will always remember my cries, my blood, tears and suffering," he said.  Speaking of his assault, Fernando said he had fallen ill and was taken to hospital and that while he was being transferred from the General Hospital he had been mercilessly attacked and as a result he had to be admitted to hospital for 104 days.

He said however that the prison hospital did not take him for treatment regularly.  When asked what it felt like to be free, Fernando said: "It is an experience of a lifetime for a person to be convicted without a just and fair hearing. It is an experience where justice and fair play should have been upheld in the country. It is the duty of the President to move in the matter. It is a pity that she did not. The Prime Minister is helpless. She should have the decency to pull the proper people up who sentenced me under the Criminal Procedure Act in Sri Lanka without giving me a just and fair trial."

"Today is a victory for all the citizens of this country who love justice and fair play," he said.

Join hands with PM

"The Prime Minister is engaged in a campaign on educating the masses of Sri Lanka on justice and fairplay and on important national issues. I wish to join hands at this moment with our Prime Minister, Ranil Wickremesinghe in educating the masses of this country on certain important national issues," he said. When asked how he was treated in prison, Fernando said: "I was treated well at the New Magazine Prison. I must salute Chief Jailor Gamini Jayasinghe and the Commissioner. But I must say that the same treatment must be given to all prisoners."

"The law is nobody's grandmother's wealth to play around with," Fernando said and a lawyer present commented that the whole sentence is a nullity.

"Recently there was a comment by a legal authority that 96% of the offenders are free. I ask him whether those who kick justice and the law are also included in this 96 percent?" queried Fernando. Thanking the human rights organisations, the government of Sri Lanka, Desmond Fernando and Elmo Perera, Ravaya Editor Victor Ivan and the media in general for giving him support, Fernando said that while the whole world was squirming at this injustice, he was sad that "the President of this country did not hear of this injustice." 

"Please free the judiciary from these corrupt elements. There is only a handful of individuals who are tarnishing the good image of the judiciary. Please do not allow the good officers who are administering the rule of natural justice in our country in a just and fair manner to be insulted in this manner," he appealed.

"When an injustice happens to us where else can we go other than to the Supreme Court or any other court? We go unarmed, we cannot take handbombs and grenades, and demand justice. We are in a democratic institution, the only weapon I took was the country's supreme constitution and I read the country's constitution in the Supreme Court of Sri Lanka but I was sentenced like a criminal and sent to jail. I tried to explain myself after the sentence, and the chair looked at me in an angry manner and said 'if you talk one more word we are going to extend your term of sentence for more than one year.' It was a threat. It was the threat for justice and fair play," went on Fernando.

Treated as a criminal

Fernando said that he was branded a criminal under the Criminal Procedure Act. "Where has the Criminal Procedure Act stated that a respondent can hear his own case and send an applicant to jail? It is a shameful thing! This is the jungle law," pointed out Fernando.

"I was assaulted for nothing," he cried. "A prisoner cannot be assaulted for nothing. They can be assaulted if they are trying to escape from custody or if there is a riot in prison. I beg that prisoners be treated like human beings," he appealed into the lens' of the countless cameras before him. Immediately after his release, the media and support groups mobbed Fernando. Vasudeva Nanayakkara, several legal personalities and members of the clergy were present to welcome Fernando.


BASL members call for removal of Chief Justice
    -- Deepal Warnakulasuriya - Sunday Observer -October 19: 

Lawyers yesterday intervened in a prestigious lecture function of the Bar Association held in Colombo to urge the BASL Chairman to take action concerning both the recent premature retirement of Supreme Court Judge Mark Fernando and what they argued was the need to remove Chief Justice Sarath N. Silva.

The calls for BASL action came during the discussion session after the yesterday evening's special BASL lecture delivered by visiting United Nations Special Rapporteur on the Independence of the Judiciary, Dato Param Cumaraswamy.

Dato Cumaraswamy, out-going UN Special Rapporteur on the Independence of the Judiciary and Lawyers, gave a lecture on the subject 'The Independence of the Judiciary and the Role of the Legal Profession'. The UN Special Rapporteur, in his lecture, drew attention to the controversy over the court action against human rights activist Anthony Michael Fernando and challenged the local legal profession to maintain the dignity of the judiciary. Dato Cumaraswamy said he was addressing a wake-up call to the Sri Lankan legal profession and the judiciary.

He claimed that several decades ago the Sri Lanka judiciary had functioned in a manner that was much appreciated but noted that this quality had deteriorated today. The discussion time that followed, however, saw several lawyers diverting the discussion to their demand for action by the Association on the twin issues of the premature retirement of Justice Mark Fernando and what they claimed was the need for the removal of Chief Justice Sarath N. Silva.

BASL Chairman Ananda Wijesekara, who chaired the lecture function hosted by the Human Rights Committee of the BASL at the Sri Lanka Foundation Institute, Colombo, urged members to focus on the subject of the lecture and to raise the other issues at the appropriate regular meeting of the Association. During the lecture function, a special event was held for the award of the prestigious Asian human rights title of 'Human Rights Defender' awarded annually by the Hongkong-based regional human rights body, Asian Human Rights Commission (AHRC). Sri Lankan human rights activist Anthony Michael Fernando, who has been awarded the AHRC title, was presented the award in the special function chaired by eminent human rights lawyer Desmond Fernando PC.


Why we need a law on contempt
    --Kishali Pinto Jayawardene, Sunday Times, October 19

The spectacle of a man walking out from the prison gates, garlanded and spontaneously welcomed by more than hundred and fifty ordinary citizens, followed by speeches made in defence of the freedom of expression of an individual, would be unusual in any country.

In this case, the fact that the man had been sentenced to one year rigorous imprisonment for contempt of court due to his insisting on proceeding with his fundamental rights application which he was supporting in the Supreme Court and 'speaking loudly in court', marks this instance out in a very unique way from others. This case is also distinguishable by the fact that all those well funded civil society organizations based in Colombo lifted nary a finger in aid of this same litigant.

In effect, the saga of Tony Michael Fernando's imprisonment for "scandalising the court" on February 6, of this year, may not necessarily be over with his release from the Welikada prison this Friday. The fact that there is currently a Parliamentary Select Committee deliberating on the manner in which the law of contempt could be codified in this country, is of course, con-incidental but entirely fortuitous, one might add.

It is striking that there are still innocents among us who continue to think, (depleted though their numbers thankfully are), that a Contempt of Court Act is not necessary for Sri Lanka. From one perspective, their position that the legal principles as regards contempt have been adequately set out in the case law in this country, is touchingly, if not a tad annoyingly, naive. On this same reasoning, India should perhaps have hesitated before enacting, particularly, their Contempt of Court Act of 1952 which, (on being found somewhat unsatisfactory), was supplanted by the Act of 1971 which regulates the present law on contempt in that country.

Again, the differing attitudes of the English courts on the issue of contempt was a prime reason why the English Act of 1981 was passed into law in order to bring English law into line with Article 6 of the European Convention on Human Rights. This was, as is widely known, consequent to a finding by the European Court of Human Rights (EUCT) that the British contempt law as declared by the House of Lords, violated Convention guarantees regarding freedom of expression.

Redress before the EUCT is available for any person who believes that his or her rights under the European Convention, (ratified by Britain in 1955 even though she accepted the enforcement machinery of the Convention only in 1966), have been infringed by a court ruling or an administrative act. If the complaint is upheld, the British government is obliged to change the law that permitted the original infringement.

The Thalidomide case illustrated a difference of opinion on contempt not only between the House of Lords and the European Court, but also between the British courts, in a sufficiently titillating manner. In issue were editorial comments made by The Sunday Times that were critical of the testing and marketing practices of a United Kingdom based manufacturer and marketer of thalidomide, a drug which had caused severe deformities in children born to women who had taken the drug during pregnancy.

The disputed comments urged the manufacturers to agree to a generous settlement and also remarked that The Times would be publishing a further article evaluating the precautions taken by the manufacturers before releasing the drug to the market. The publication of the editorial comments took place when litigation was pending between the manufacturers and their victims before the court. Would such comments have amounted to contempt of court?

The British courts gave differing answers to this question. In the lower courts, injunction pleaded for by the manufacturers to restrain the Times from publishing the planned evaluation of their testing procedures was granted. The lower court order was however, overturned in the Court of Appeal where Lord Denning, in classic reasoning on the manner in which contempt powers ought to be exercised, held that in the unique circumstances of a profound national tragedy, it was in the public interest that the case be publicly discussed. Private interests yield to the public interest in these instances.

This appealing reasoning was departed from in the House of Lords which held that restrictions based on the law of contempt pose not so much a conflict between the public interest and private interest but rather, a conflict between two public interests; freedom of speech and the administration of justice. The former has necessarily to give way to the latter. At that time, the House of Lords decision was criticized in Parliament as well as in the media and a Committee, headed by Lord Justice Phillimore, recommended reforms to the law of contempt.

In the meantime, the decision of the law lords went up before the European Court of Human Rights. The EUCT, dissenting from Britain's highest tribunal, stated that what was in issue is not a choice between conflicting principles but with the principle of freedom of expression which is subject to a number of exceptions that must be narrowly construed.

The EUCT concluded that the injunction restraining The Times from publishing violated Convention guarantees to freedom of expression as the thalidomide disaster was a matter of undisputed public interest and publication would not substantially distort the settlement process. In direct consequence of this decision confirming that the House of Lords ruling ran contrary to Convention rights, the Contempt of Courts Act of 1981 came into existence.

Meanwhile, with the incorporation of the European Convention into UK law by the Human Rights Act of 1998 (which came into force in October 2000), there is a greater obligation on British courts to conform to Convention rights. Thus, by necessary implication, the liberal thinking of the EUCT is slowly being infused into British case law involving the rights of individuals.

In contrast, if some of us are of the opinion that the Sri Lankan courts have demonstrated a greater consistency in laying down principles regarding contempt or in applying those principles to the facts of a case, perhaps such persons belong more in the other-other world than in present reality.

This is, after all, a country where on one occasion, a Cabinet Minister, (then Minister of Samurdhi Affairs, SB Dissanayake), was merely 'warned and discharged' by the Supreme Court for saying at a public gathering that the Government will 'close down the courts and ask judges to take long leave if they cannot do what the government wants', in distinct difference to a litigant being handed down one year of hard labour for speaking loudly in court and persisting in his application.

On the other hand, there is truth in the warning that no law can legislate against intemperate judges or discriminatory application of the law and legal principles. Again, while a law can bequeath to the media a particular framework for writing with regard to judgements and the courts, no law can prevent the media from self-censorship with regard to matters affecting the judiciary in a manner that destroys the credibility of that newspaper or that television station.

Laws cannot replace principles of fairness, justice and respect for the rights of others. These are salutary thoughts that we would do well to ponder upon as this country's policy makers prepare legislation codifying principles of contempt of court applicable to Sri Lanka.

Posted on 2003-10-24
Asian Human Rights Commission
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