17 February 2003
SRI LANKA: The Judiciary and Human Rights
A Statement by the Asian Human Rights Commission (AHRC)
We are forwarding a statement from the Free Media Movement in Sri Lanka regarding a very extraordinary incident. A man who has filed a fundamental (human) rights application at the Supreme Court of Sri Lanka was directed to file his case in another court. He later filed a further motion at the same court, in which he took objection to the Chef Justice being in the panel in his case. This motion was taken for hearing with the chief justice himself being one of the judges in the panel. The man concerned took up his objection but was asked to stop. When he did not he was asked to show cause as to why his conduct does not amount to contempt of court and later during the same day he was sentenced to one year of imprisonment by the same judges. The registrar of the court was directed to hand the petitioner to the prison authorities. The incident raises many questions.
Since the man was objecting to the Chief Justice, should the Chief Cjustice have participated in these proceeding, particularly in sentencing him? If the man has in fact, made an error in his behaviour should he not have been given enough time to defend himself and to get legal advice? Should not the judges who hear the contempt case be different to those against whom the alleged contempt takes place? And further, is not the sentence too rigorous? What impression of impartiality and objectivity does the case make?
This incident is even more important as there have been very serious concerns expressed about the Chief Justice. His conduct has in the past being criticized by the UN Rapporteur on Independence of Judges and Lawyers and International Bar Association; he has been faced with few petitions in court by way of fundamental rights applications, one even from two judges. Obviously, this last incident is a clear confirmation of something that is clearly going wrong in the state of judiciary in Sri Lanka.
Free Media Movement
Supreme court last week imposed one year's imprisonment on a citizen who went to the Supreme Court in the belief that his fundamental rights had been violated. The Free Media Movement believes that this is a violation of human rights by the custodian of human rights.
Michael Anthony Fernando (Tony) of Dehiwala who is the victim of this tragic episode is a 45-year-old teacher of English. He is the secretary of Lakjana Human Rights Protection Organization.
Whether this petitioner's complaint comes within the purview of fundamental rights is not our concern. He submitted a fundamental rights petition to the supreme court again making the chief justice and two other judges who had heard the case respondents in the belief that his fundamental rights had been violated by their taking action on the basis that two fundamental petitions with different contents were one and the same petition. It may be that he was inclined to go to the supreme court again because there was no other institution to which he could go in order to challenge a decision given by the supreme court.
Whatever may be the pros and cons of filing such a fundamental rights case making three supreme court judges who had heard his case respondents, the fact that the case was taken up for inquiry before a panel of judges which included the chief justice and this complainant was sentenced to one year's imprisonment by that panel cannot be correct or just in a context in which this complainant petitioner, after learning that the chief justice too was included in the panel of judges appointed to hear the complainant petitioner's case had protested against it and had requested by a motion not to include in the panel of judges anyone who had been made a respondent in the case. That one should not be a judge in a case one is an accused or respondent is an accepted principle of justice. That principle appears to have been violated in an extremely crude manner by the chief justice by not only taking a case filed against him for inquiry by himself but by sentencing a person who had mad!
e him a respondent, to a person of imprisonment.
It is difficult to understand how a submission of such a petition by the complainant could be an insult to the judiciary. Even if a had been caused thereby, the punishment should have been meted out not in the manner in which it has been, but in accordance with the accepted principles of natural justice. If an offence had been committed, a charge sheet should have been tabled and the accused should have been given to the accused to defend himself and, if he needed a lawyer's assistance, that too should have been allowed. In imposing a punishment, the fact that this person had not committed an offence before, and the fact that there was no possibility of appealing against the punishment should have been taken into consideration.
This petitioner had to face this unfortunate fate also at a time when the prime minister had accepted the request made by media organizations (Free Media Movement, Editor's Guild) to enact a law to define contempt of court so that there would be no room for unjust action in a context in which there was no proper definition of contempt of court, and in fact at a time when the attorney general was preparing drafts for the purpose.
The incident in which a citizen who had instituted a fundamental rights action making the chief justice a respondent cannot be considered an isolated happening with no connection with the crisis that has arisen in the judiciary centering on the chief justice. This is also not the first fundamental rights case filed making the chief justice a respondent. At the time Sarath Nanda Silva was appointed chief justice, too, three fundamental rights cases were filed, and the manner in which the panel of judges was appointed to hear those cases and the manner in which the cases were heard, were discussed at international level too. Thereafter two district judges also filed two fundamental rights petitions making the chief justice a respondent, and on a day in which those fundamental rights petitions were taken up for inquiry there were posters put up in the supreme court premises against those two judges, and thereafter there were death threats also against them. The citizen who is s!
entenced to one year's imprisonment is the third victim. Thus, this may also be considered a punishment meant t
o teach a lesson to those oppose the chief justice.
The Free Media Movement requests all human rights organizations and media organizations interested in the freedom of expression to refrain from being silent in the face of such preposterous happenings and to demand from the authorities to free without delay the person who has been sent to prison. It is duty of the leaders like the president, the prime minister and the leader of the opposition to pay attention to this question and the Free Media Movement demands that they take necessary action to get Anthony Michael Fernando, who has been imprisoned for demanding human rights, freed immediately, and also to take necessary steps to correct the present unhappy state of affairs and to create conditions in which the judiciary will be trusted respected by the people again.
Free Media Movement
Asian Human Rights Commission
Hong Kong SAR, 17 February 2003
Posted on 2003-02-17