This week the Supreme Court of Sri Lanka, by a majority judgement of two out of a bench of three, held that several prison officers had violated the constitutionally guaranteed rights of Michael Anthony (Tony) Emmanuel Fernando who was severely tortured while he was in prison custody. The bench consisted of Dr. Shirani Bandaranaike, Jagath Balapatabendi and Nimal Gamini Amaratunga. Justice Amaratunga disagreed with the majority judgement. This relates to an incident which took place on February 10, 2003. Despite of the delay of five years the judgement of the Supreme Court in declaring a violation of rights by prison guards and the awarding of the compensation of Rs. 150,000/= will be welcome news to many people in Sri Lanka who are well aware of this highly publicised and controversial case.
The controversies relating to the treatment of Tony Fernando will remain for a long time and it is very unlikely that it will be soon forgotten from the annals of the judicial history of Sri Lanka. The United Nations Human Rights Committee (UNHRC) also earlier made a finding in response to a communication by Tony Fernando that the Supreme Court itself had violated Article 9 (1) of the International Covenant on Civil and Political Rights by illegal detaining Mr. Fernando in prison for one year.
The alleged reason for imprisonment was that Tony Fernando had spoken loudly in court. He had filed an application relating to a labour dispute in which he was of the view that he had failed to obtain justice from the employers and he brought it, by way of a fundamental rights application which was initially dismissed by a bench headed by the chief justice. Tony Fernando wanted to revive his application and wanted the case to be heard before a tribunal in which where the judges who heard the case initially would not sit. However, the same judges sat to hear this motion and sentenced him to one years rigorous imprisonment, allegedly for talking loudly in court. Tony Fernandos lawyers brought an appeal against the judgement of imprisonment however, the same bench which imposed the sentence of imprisonment did not grant the leave to proceed with the application. Mr. Fernando refused to tender an apology as a way of reducing his jail sentence as he was of the view that he had not committed any illegal act. He served the full term of his imprisonment and was later awarded the first Human Rights Defenders Award by the Asian Human Rights Commission.
The United Nations Human Rights Committee ordered the Sri Lankan government as follows:
In accordance with Article 2, paragraph 3 (a) of the Covenant the State party is under obligation to provide the author with an adequate remedy, including compensation, and to make such legislative changes as are necessary to avoid similar violations in the future. The state part is under an obligation to avoid similar violations in the future.
The UNHRC further ordered that the government should report on the implementation of their recommendations within 90 days. However, to-date, no compensation for illegal imprisonment has been granted to Tony Fernando in terms of the decision. The government took up the view that since, in a separate case, the famous Singarasa case, the Supreme Court held that the UNHRC decisions have no binding effect within Sri Lanka and for that reason the government will not implement the decision of the UNHRC.
Recently the Supreme Court in giving its opinion on a draft law on the implementation of the ICCPR in Sri Lanka held that the Sri Lankan constitution is in conformity with the ICCPR. However, this new law does not deal with the Sri Lankan governments obligations to honour the recommendations of the UNHRC in cases like that of Mr. Fernando.
Under these circumstances the present judgement of the Supreme Court throws a ray of hope in the midst of an enormously confused legal situation regarding the implementation of human rights in Sri Lanka. This welcome decision brings out into the open, many unresolved problems in the intricate web of law where respect for international norms and standards of human rights still remain an extremely complicated issue.
The plight faced by Tony Fernando was unfortunate. However, he has now become one of those legends through which some of the fundamental problems of citizenship facing Sri Lankans are being highlighted. Tony Fernando needs to be congratulated for the courage to stand up through all these years in search of justice in a country where justice is very illusive. The case highlights the facts that even in the most difficult situations the struggle for justice needs to be continued. The lessons that such struggles leave are much more important than compensations obtained from courts. The ultimate beneficiaries of Tony Fernandos struggle and the struggle of those who supported him will contribute to the benefit of all Sri Lankans. Many in this country did not come forward to support Tony Fernando, however, they can now have the benefit of his struggle and at least at this stage, once again look into the responsibilities of citizens facing an extraordinarily repressive situation. It is only citizens with courage like Tony Fernando who can shed light on the ways to uplift the extremely dismal rule of law situation in the country.
One question that may arise from this judgement is as to what will happen to the prison officers who have been found by the Supreme Court to have tortured Tony Fernando. Under Sri Lankan law torture is a serious crime carrying a mandatory sentence of seven years of rigorous imprisonment and a fine of Rs 10,000/=. It is the duty of the Inspector General of Police and the Attorney General to prosecute the two prison guards. It is also to be hoped that the prison authorities will dismiss the two officers who have committed torture.
