In the addendum to his 2003 report to the UN Commission on Human Rights, the Special Rapporteur on the independence of judges and lawyers Mr. Dato’ Param Cumaraswamy stated that he continues
to be concerned over the allegations of misconduct on the part of the Chief Justice [of Sri
Lanka] Sarah Silva, the latest being the proceedings filed against him and the Judicial Service
Commission in the Supreme Court by two district judges which is set for hearing on 27 February
2003 (E/CN.4/2003/65/Add.1, para. 178).
At a press conference held in Colombo on February 27 Mr. Cumaraswamy spoke on the case of Michael Anthony Fernando, who after being imprisoned for one year by the Chief Justice and two other judges was mercilessly beaten by prison guards and is now an invalid. He remarked, \”The Supreme Court of Sri Lanka has done an act of injustice. A man who came to seek justice was served with injustice.\” He continued, \”I want the bar association of Sri Lanka to wake up [and] have the courage to take up the cause of this man without demanding guarantees that they will be not be hauled up for contempt,\”
Regrettably, despite the Special Rapporteur’s protest, and those of many international organizations, nothing has been done to correct this injustice, and Mr. Fernando is still in prison. Neither the Bar Association of Sri Lanka nor its members have responded. The reason for their failure is summed up in a statement by a lawyer over 30 years experience, who remarked recently to the Asian Human Rights Commission that, \”It is not only the people that have lost confidence in justice but also the lawyers.\”
Many people in Sri Lanka are saying that it is quite simply a country without justice. It may be unreasonable to attribute this entire condition to the Chief Justice, but it is reasonable to say that he has contributed to this situation greatly. Lawyers typically claim he intimidates them when in court, and threatens to debar them from practice, especially in human rights cases. Others tell of his manipulating panels and dates of hearings in a manner that casts doubt on the objectivity of proceedings. In a lengthy book entitled The Unfinished Struggle for the Independence of the Judiciary (2002), prominent journalist Victor Ivan has exposed extensive misconduct and abuse of authority by the Sarath Silva both as Attorney General and Chief Justice. There had been no official denial of the allegations made in this book, nor has the author been subjected to any legal action, despite inviting it. In fact, most of the material in the book was previously published in newspapers and!
is widely known to the public in Sri Lanka.
There is a common feeling that it is futile to challenge the abuse of power by the Chief Justice. This explains why the call of the Special Rapporteur went unheeded. Indeed, it was not the first of its kind. The 2001 report of the International Bar Association entitled Sri Lanka: Failing to Protect the Rule of Law and the Independence of the Judiciary noted that
Any proceedings or inquiries concerning the position of the Chief Justice when Attorney-General,
and in connection with his appointment as Chief Justice, should be resolved by decision or
appropriate judicial action and not left in abeyance. Further, any continuation of the
present, or future impeachment proceedings of the Chief Justice should be dealt with rapidly and
with due process of law.
Sadly, the attempt to impeach the Chief Justice-the only avenue by which he may be investigated-has been derailed by political manoeuvring, despite the initial motion succeeding, with one-third of the Parliament voting in favour.
Most recently Nuwara Eliya District Judge Prabath de Silva resigned in protest against the Chief Justice. In saying that it was impossible for him to continue his work effectively under Sarath Silva, Judge de Silva cited the case of Mr Michael Fernando as evidence of how were he to present a fundamental rights case to the Supreme Court it would not yield any good result.
Judge de Silva’s remarks echo those of everyone concerned by this case, and the independence of the judiciary in Sri Lanka. The questions these people are asking can be summed up as follows: What can the people do when the judiciary itself arbitrarily abuses human rights and when it acts in violation of a citizen’s fundamental rights? What can they do when the judiciary abuses its power to imprison and intimidate persons arbitrarily and when it bullies those who come seeking justice?
These are worrying questions for people who care about human rights. Judicial support is critical if the fight against violations of human rights by the executive is to succeed. When confidence in the judiciary is undermined, it signals a crisis.
The concerns expressed by Mr. Cumaraswamy with regards to the Chief Justice and the case of Mr. Michael Fernando are most welcome. However, while he has identified the problem, there is at present no means to resolve it. To change this situation, the Asian Human Rights Commission suggests that the UN High Commission for Human Rights
1. Undertake a joint intervention in Sri Lanka involving Special Rapporteurs, UN Committees and Working Groups whose mandates permit their involvement.
2. Draw the attention of the UN General Assembly to the situation in Sri Lanka.
3. Initiate a high level fact-finding mission on the independence of the judiciary in Sri Lanka.
4. Draw up a set of principles for dealing with abuse of judicial authority, both nationally and internationally, when local remedies fail.
5. Consider establishing a programme with the Bar Association of Sri Lanka to motivate them towards action.
Whatever steps are taken, the ultimate objective is to open space for people to play a more active role in resolving the crisis facing the judiciary in Sri Lanka. Both Sri Lankan lawyers and the public are demoralized and paralyzed. They need a way out of this situation.
It is above all a duty of the lawyers to rise above their petty interests and fears. Their relevance to Sri Lankan society is now very much being questioned. Without a strong move by the lawyers to stand on the best traditions of their profession, the situation for civil liberties in the country looks very bleak indeed. The Asian Human Rights Commission therefore echoes the call of the Special Rapporteur for all Sri Lankan lawyers to wake up.
Some in the media have kept up the struggle against the degeneration of judiciary. They are to be congratulated. There is a general realization in the media of the great threat hanging over Sri Lanka’s justice system. The efforts taken so far need to be expanded. Ultimately, press freedom itself depends on the strength of the justice system.
Meanwhile, Mr Michael Fernando remains in jail. His situation is a grim reminder of the urgency of the task. There are many like him who will benefit tangibly and immediately if the Sri Lankan judiciary can be brought back on track, its independence established in terms of the norms and standards that the UN rightly defends.
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Asian Human Rights Commission | Tel: +(852)-2698-6339
Unit D,7 Floor,16 Argyle Street,| Fax: +(852)-2698-6367
Mongkok Commercial Centre, | E-mail: ahrchk@ahrchk.org
Kowloon, Hong Kong SAR | Web: www.ahrchk.net
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