The Asian Human Rights Commission (AHRC) has carefully studied the complaint of torture made by Anthony Michael Emmanuel Fernando on 16 February 2003 and the previous contempt of court case against him.
We reproduce below the full judgement (Ref: S.C.(F/F) No. 55/2003 or 6 February 2003) of the Supreme Court of Sri Lanka on the contempt of court conviction that led to Mr Fernando being sentenced to one years’ rigorous imprisonment.
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BEFORE
S. N. SILVA C.J
EDUSSURIYA A. J &
YAPA J.
Petitioner is present in person.
The petitioner has been asked to show cause as to why he should not be dealt with for contempt of Court. [The] Court, accordingly, found him guilty for contempt of Court and sentences him to one year’s rigorous imprisonment for contempt of Court.
Registrar to inform the Prison Authorities to arrest him.
Sgd.
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While the brevity of the judgement itself is a matter for serious concern, AHRC holds that the said judgement is a clearly questionable on many grounds, including Sri Lanka’s obligations under human rights treaties to which it is a state party. On the basis of the International Covenant on Civil and Political Rights (ICCPR), Mr Fernando has been denied a fair hearing, as he was entitled to but never obtained
1. A charge sheet clearly stating the offence and the possible punishment, so that he would have been informed of the serious consequences of the proceedings;
2. Legal advice, which he had no possibility to obtain prior to conviction;
3. Sufficient time to prepare his case;
4. A judgement containing the factual and legal basis on which it had been arrived at, giving a summary of the evidence against Mr Fernando; and
5. Right to appeal the court’s decision.
The reason for this outcome is that the fundamental norm that respondents and judges should not be same has been violated. The fact that one of the respondents to Mr Fernando’s claim sat in judgement of him undermines judicial objectivity. It is a well-accepted norm that the judges should not only be impartial but also be seen to be impartial. The purpose of contempt of court proceedings is to enhance the prestige of the court. This particular judgement achieves the opposite.
AHRC has also studied the complaint of torture suffered by Mr Fernando and is satisfied that there exists a credible complaint that should be investigated by an impartial body. However, as Mr Fernando is in hospital under remand custody, and chained even there, it is virtually impossible for him to participate freely at such an inquiry. He is under enormous pressure. AHRC has also learnt that even proper clothing has not been provided to him. Despite officials’ claims, the family still does not have proper access to Mr Fernando. Meanwhile, he has stated that attempts have been made to fabricate evidence and to deny that injuries to his spinal cord were due to an assault while he was being taken to prison.
AHRC urges
1. The Supreme Court of Sri Lanka to quash this judgement and hold a fresh inquiry guaranteeing the rights of the aggrieved party within Sri Lankan law and in accordance with international obligations;
2. That Mr. Fernando be freed from custody, so that he may be able to obtain the proper medical care of which he is in dire need due to the assault perpetrated on him;
3. That a credible and impartial investigating body be appointed to investigate his complaint in relation to torture and the conspiracy that may exist for the perpetration of this torture;
4. That the UN Special Rapporteurs on the independence of judges and lawyers, human rights defenders, and torture, international human rights organizations and international judicial organizations take up this case with the Government of Sri Lanka with the utmost urgency.
Asian Human Rights Commission – AHRC
21 February 2003, Hong Kong
