We reproduce below the second of a series of five cases researched on the basis of the information collected by the Asian Human Rights Commission in the past years reflecting the type of issues faced by persons who, having become victims of crime or abuse of rights faced extraordinarily repressive conditions when they sought redress. The dysfunctional nature of the institution of justice and the problems of the mentalities of those who hold authority demonstrate the common problems that people who wish to assert their rights face particularly in the south Asian context. These five cases are from Sri Lanka and the AHRC has closely worked with the victims in their long struggle to seek justice.
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The picture of Anthony Michael Fernando most commonly circulated shows a young, smiling man looking slightly down into the camera. So perhaps, one surmises, he is tall. He wears a sport shirt, open at the neck, and his hair is neatly trimmed. In the background are what appear to be Gothic windows: He is standing, perhaps, in front of a church facility, or a community center.
One searches this small snapshot in vain for some suggestion of the extraordinary fate that befell Tony Fernando, as he is known, when he entered the space of the Sri Lankan justice system. But there is none. So, in the end, it is the ordinariness of this man that bears interpretation. In Tony Fernando we find the tragic ordinariness of extraordinary injustice in Sri Lanka — its reach into everyday lives.
Tony Fernandos story extends back many years now, for justice delayed is a considerable part of it. In 1997 he was employed as the Christian Emphasis Secretary of the Young Men’s Christian Association in central Colombo. One day he fell and suffered injuries — a regrettable but common enough experience. Little that happened afterward was common, however — at least not by any reasonable standard. Tony Fernando fell at the Y.M.C.A., one might say, and did not stop falling until he landed in exile in Canada, where he now lives.
After his injury at the Y.M.C.A., Fernando filed a claim for workman’s compensation. When the matter came before the Deputy Commissioner for Workmens Compensation, an amount of offered which Fernando found unacceptable and his claim for compensation for a work-related injury was thereafter dismissed.
Legal motions followed — Fernando filed four of them. The first two alleged that the deputy commissioners ruling violated his constitutional rights.
Time passed. In November of 2002 the Supreme Court considered the two motions jointly and dismissed them. Two months later Fernando filed a third motion relating to a legal point: He alleged that that the consolidation of the first two claims and their joint dismissal effectively denied him a fair trial. This motion was dismissed almost immediately. Fernando’s fourth and most fateful motion followed in February of 2003. In it Fernando objected that the chief justice, Sarath Silva, and the two other judges who considered his third motion had no right to do so: They were the same judges who had dismissed the first two motions. This point would later receive the support of numerous legal experts, including the U. N.’s Special Rapporteur on the independence of judges and lawyers, Param Cumaraswamy.
But it is at this point that the substance of the case, one way or the other, is lost — or changes fundamentally in nature. From this point forward the question ceases to be Fernando’s compensation claim and becomes the nature of justice (or injustice, more properly) in Sri Lanka. “I am not going into the merits of the case,” Cumaraswamy would say later. “The question here is whether 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.”
We mentioned that the fourth motion was fateful, and indeed it was. With it, a fall while on duty at the Y. M. C. A. became, perversely enough, an international cause célèbre.
Fernando filed his final motion on February 5th. The following day the motion was heard, and during the proceedings Chief Justice Silva, a man of wide and controversial repute, considered that Fernando spoke too loudly in addressing the court. Silva issued a summary judgment: Fernando was sentenced to a years “rigorous imprisonment” — that is, hard labour — for contempt of court. He began serving his sentence that day.
Tony Fernando faced abuse almost as soon as he entered prison. He developed an asthma condition that went untreated. He was forced to sleep on the floor with his legs chained, which worsened his medical condition. On being transferred from a prison hospital back to his cell, he was repeatedly assaulted, which resulted in spinal injuries. In less than a week he was unable to get out of bed.
A month after his incarceration, Fernando filed a case alleging violation of his fundamental rights according to the Sri Lankan constitution. He also appealed Silvas contempt ruling. The rights case, at writing, is still pending; the appeal on the contempt charge was dismissed in July of 2003, four months after it was filed.
Tony Fernando was released from prison eight months into his sentence, in October 2003. While in prison custody, he filed three legal complaints: one with the U. N. Human Rights Committee regarding the contempt charges and the torture that followed; one (noted above) with the Supreme Court alleging torture while he was imprisoned, and one a criminal case against two prison guards allegedly responsible for his torture. At the time of writing the fundamental rights case before the Supreme Court is still pending and the criminal charges against the two prison guards has not been pursued by the state and the United Nations Human Rights Committee has made its decision, holding that Sri Lanka as the state party has violated Tony Fernandos human rights by illegal detention, despite of the court decision to imprison him and requesting the government to pay compensation for the violations of his rights. The government has refused to pay the compensation on the basis that since the imprisonment was a result of a judgment of a domestic court it is not in a position to take any action on the matter.
Events unfolded swiftly at this point. In December of 2003 he received anonymous death threats by telephone, during which time he was told to withdraw all three cases. A month later the U. N. Human Rights Committee appealed to the Sri Lankan government for Fernandos protection. (None was forthcoming.) A month later there was an attempt on Fernandos life, when an unidentified man attacked him on a Colombo street and covered his mouth with a handkerchief containing a substance that proved nearly lethal.
On 30th August 2004, Tony Fernando appealed for asylum in Hong Kong. He left Sri Lanka on the 16th June 2004, and seven months later settled in Surrey, Canada where he now resides. His wife and children joined him in Surrey on the 16th December 2004. He still awaits two judgments.
There is a striking pettiness in the Tony Fernando case. Why did the Supreme Court act to turn such a minor matter into a case with international implications in the first place? A pettiness and a lack of all reasonable proportion. Sri Lanka, unlike India and numerous other jurisdictions, has no law covering contempt of court procedures. Judges can rule as they see fit and sentence defendants accordingly. It was in this circumstance that Tony Fernando received a years hard labour (and then all the mistreatment that went with it) for the alleged offense of raising his voice in court. Again, the question is, “Why?”
Some fundamental features of Sri Lanka’s critically dysfunctional judicial system are evident in the Fernando case. To understand them is to answer the above-noted questions. To understand them is also to recognize the fundamental problem of hierarchical consciousness in Sri Lanka and how it is manifest through a judicial system that is nominally based on modern procedure.
The most prominent of these characteristics is an obsession with form within the system. One finds among attorneys and judges alike in Sri Lanka an almost pathological preoccupation with rules and procedure. Form, in this sense, is ordinarily essential for the delivery and administration of equal justice. In the Sri Lankan case, form as we mean it here performs a different function. Its purpose is to mask what amounts to a near anarchy of injustice in Sri Lankan courts. So long as form is observed, practically anything goes.
Tony Fernando’s true offense was to insist that law and procedure be applied as they were originally intended. This amounted to an attack on another of the core features of the Sri Lankan system: its impulse to preserve the prerogatives of arbitrary power. So we arrive at the essential contradiction exposed in the Fernando case — that is, behind the curtain of rules that the judiciary so carefully maintains, there are no rules.
The question of arbitrary power is related to another involving distance. Distance between ruler and ruled is, in essence, a feature of pre-modern political systems. It is by way of distance that arbitrary power is maintained. And it was another of Tony Fernando’s offenses that he denied the judiciarys right to a distance it considered customary.
What is finally brought to light in the Fernando case is the problem of impunity and the judiciarys underlying desire to preserve it. The true tragedy of Tony Fernandos journey through the courts — even before it has ended — is that there is nothing out of the ordinary in it.
