In a landmark judgment, the U.N. Human Rights Committee has held that Sri Lanka, as a state party to the Optional Protocol of the International Covenant on Civil and Political Rights, violated one of its citizen’s rights by arbitrarily detaining him for one year because of alleged contempt of court. The Committee, in its decision on March 31, 2005, communicated in writing on April 29 (CCPR/C/83/D/1189/2003), held that while it was the Sri Lankan judiciary that violated the rights of Michael Anthony (Tony) Fernando, responsibility lies with the state as a whole.
In their findings, the 14 members of the Committee examining the case held that the state party is obliged to provide Tony Fernando, the author of the complaint, with an adequate remedy, including compensation. It also instructed that legislative changes be made as necessary in order to avoid similar violations in the future. The government of Sri Lanka has been given 90 days to report back to the Committee on measures taken to give effect to these instructions. It has also been requested to publish the Committee’s views.
Tony Fernando made an application in June 2003 to the Human Rights Committee under the Optional Protocol of the Covenant, which entitles individual citizens of state parties to lodge complaints where all domestic remedies have been exhausted. In it he complained that he was sentenced to one year’s rigorous imprisonment for alleged contempt of court, and that he was subjected to torture while in prison custody.
In its reply, the state party asserted that the complainant had treated the court contemptuously and had been given the opportunity to apologise but had not done so, and therefore was sentenced accordingly. However, the Committee held that a fine or similar penalty by the court would have been sufficient under the circumstances. On the sentence of one-year’s rigorous imprisonment, it has written that, “No reasoned explanation has been provided by the court or the State party as to why such a severe and summary penalty was warranted.”
The state party also objected to the complaint by arguing that, “The judiciary is not under the State’s control and as such the State cannot influence nor give any undertaking or assurances on behalf of the judiciary.” However, the Committee in its conclusion found that, “The fact that an act constituting a violation of [the Covenant] is committed by the judicial branch of government cannot prevent the engagement of the responsibility of the State party as a whole.” Therefore, in finding that Tony Fernando was subjected to arbitrary detention in violation of the Covenant, it has laid the responsibility for this violation at the feet of the entire state.
The Asian Human Rights Commission today lauds the decision of the Human Rights Committee given in favour of Tony Fernando, and its strong recommendations both to give redress to the complainant and also reform the law to prevent similar violations of rights. The Committee’s decision vindicates the principled stand taken by a man who has had to suffer great personal tribulations as a result of his honest intentions. The Asian Human Rights Commission looks forward to a swift response from the state party with a view to taking the required steps so that Sri Lanka may comply more fully with the Covenant, which it has committed to uphold.
