UPDATE (SRI LANKA): Reproduction of a fundamental rights application and an open letter in the torture case of Mr. Fernando 

Regarding our previous appeal on the torture case of human rights defender, Mr. Michael Anthony Emmanuel Fernando, who was an applicant in a case of fundamental rights.(Ref: S.C. [F/F] No. 55/20030), he was sentenced to one years imprisonment on Feb. 6, 2003, for alleged contempt of court. He was then severely assaulted while in custody in prison and is now in hospital in a serious condition. Even in hospital he is chained.

His present condition is reported as follows, “Regarding the mental state of Mr. Emmanuel Fernando, his condition is deteriorating and though he is conscious, he is shouting at the top of his voice. He was taken to Psychiatric Consultant at Angoda. But he is chained to the bed and he talks and tried to harm himself by banging his head on hard objects. He had head injuries [and] little bumps everywhere.”

In the Feb. 27 statement of the UN Special Rapporteur on independence of judges and lawyers, Mr. Param Cumaraswamy condemned the contempt of court judgement as an act of injustice done by the Supreme Court of Sri Lanka and asked the bar association and lawyers of the country to come to the assistance of Mr. Fernando. OMCT, ARTICLE 19, and AHRC also condemned the judgement. Many more have expressed their concerns.

Last week a fundamental rights application was filed on behalf of Mr. Fernando. We reproduce a copy of the application. AHRC has also published a further report, which is reproduced below.

AHRC urges everyone to take up this matter with the Sri Lankan government. Our previous appeal and update on this case can be found at http://www.ahrchk.net/ua/mainfile.php/2003/408/, http://www.ahrchk.net/ua/mainfile.php/2003/409/

Thank you for your attention.

Urgent Appeals Desk
Asian Human Rights Commission

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In the Supreme Court of the Democratic Socialist Republic of Sri Lanka

In the matter of an Application in terms of Article 126 of the Constitution.

Petitioner: Suranjith RK Hewamanne
Attorney-at-Law
530/7, Havelock Road, Colombo 6

SC FR
Application No.
On behalf of Anthony Michael Emmanuel Fernando
No.187/70A, Jayasamagi Mawatha, Hospital Road, Kalubowila

Presently at Ward No.75, National Hospital Colombo in the custody of Welikada Prison

Vs.

1. Gayan Chrishantha, Jail Guard

2. WA Priyashantha, Jail Guard
Both of Welikada Prison
Colombo 8

3. The Superintendent
Welikada Prison, Colombo 8

4. Commissioner General of Prisons
Prison Head quarters, Colombo 8

5. The Secretary
Ministry of Interior
Baladaksha Mawatha, Colombo 3

6. The Attorney General
Attorney General’s Department, Colombo 12

Respondents

On this 13th Day of March 2003.

To: His Lordship the Chief Justice and other honourable Judges of the Supreme Court of the Democratic Socialist Republic of Sri Lanka

The Petition of the Petitioner above named appearing by Kamini T. Dissanayake, Attorney-at-Law, respectfully states as follows;

1. The Petitioner is an Attorney-at-Law and is a citizen of Sri Lanka. The Petitioner states that the Petition is made on behalf of Anthony Michael Emmanuel Fernando.

2. The Petitioner states that Anthony Michael Emmanuel Fernando is a citizen of Sri Lanka and is 46 years old.

3. The Petitioner states that Anthony Michael Emmanuel Fernando was sentenced to a term of one year’s rigorous imprisonment for Contempt of Court in SC FR Application No.55/2003 on 6th February 2003.

A true copy of the certified copy of the Order made on 6th February 2003 in SC FR Application No. 55/2003 is annexed herewith marked as P1 and is pleaded as part and parcel hereof.

4. On being taken to Welikada Prison on 6th February 2003 Anthony Michael Emmanuel Fernando developed a serious Asthmatic condition and was taken to the Prison Hospital. As his condition was unsatisfactory Anthony Michael Emmanuel Fernando was taken to the National Hospital Colombo and was admitted to the Intensive Care Unit.

5. On 8th February 2003 Anthony Michael Emmanuel Fernando was transferred to Ward No. 44 but was not given a bed and was made to sleep on the floor with his leg chained as required by the prison authorities. He was permitted to move only for the purpose of calls of nature. Two prison guards stood guard.

6. Anthony Michael Emmanuel Fernando’s condition worsened as he developed a chill as he was made to lie on the floor, which made his asthmatic condition worse.

7. Anthony Michael Emmanuel Fernando was told by his wife and the father who visited him on 8th February 2003 that when they went to Welikada prison on 6th February 2003 to see him, no information was given by prison officials as to his whereabouts and his condition. They had to investigate on their own and had found out that Anthony Michael Emmanuel Fernando is warded in the Colombo National Hospital.

8. The Petitioner states that on 10th February 2003 Anthony Michael Emmanuel Fernando experienced severe pain all over his body but was not given medical attention. His condition was so critical that his father who visited him brought a priest to give the final sacrament given only to persons who are about to die.

9. The Petitioner states that by about 4pm on 10th February 2003 Anthony Michael Emmanuel Fernando was taken on a stretcher to be put into a prison bus that was parked at the gate to be taken to Welikada prison. But the stretcher could not be taken inside the bus as the steps were too narrow for the stretcher to be carried inside and the stretcher was placed on the ground with him lying on it in pain. There were prison guards seated inside the bus and one of the guards alighted from the bus and shook him by the shoulder and dragged him into the bus. Screaming in pain he called for his father who was at the spot. The prison guard then dragged him inside the bus saying, “You are pretending to be ill. If you call your father I will kill you.” He was then dropped on the floor of the bus where he lay flat on the floor. Thereafter he was kicked on his stomach, the back and spine and he was writhing in pain. He was assaulted on the face and the body by the prison guards seated inside the bus.

10. The Petitioner states that as a result of the attack Anthony Michael Emmanuel Fernando fainted and thereafter on arrival at the Prison he was dragged out of the bus and taken on a stretcher to the prison Hospital and kept near the toilets where he remained until the next morning.

11. Thereafter Anthony Michael Emmanuel Fernando was examined by a doctor and was given a bed without a mattress. Thereafter on 16th February 2003 he was transferred to the Colombo National Hospital for further treatment, as he was considered to be too seriously ill to be kept at the prison hospital. Anthony Michael Emmanuel Fernando has been under treatment in the Colombo National Hospital first in Ward No. 72 and thereafter in Ward No. 75. He remains there under treatment to date.

12. The Petitioner states that after the said assault on Anthony Michael Emmanuel Fernando, his father and wife visited him on 12th February and the lawyers visited him on 13th February. He was subsequently visited by Dato’ Param Cumaraswamy, the UN Special Rapporteur on the Independence of Judges and Lawyers, who discussed the proceedings in Court and also looked at the injuries inflicted on him in order to report these matters to the United Nations Commission on Human Rights. The Petitioner states that visits to Anthony Michael Emmanuel Fernando have now been restricted

13. The Petitioner states that on 7th March 2003 Anthony Michael Emmanuel Fernando was taken to the Colombo Magistrates Court to take part in an Identification Parade against his will in an ambulance on a stretcher in spite of his protesting that he was not physically fit to take part in such an exercise. On objections being raised by Counsel for Anthony Michael Emmanuel Fernando the said Identification Parade has now been postponed to 21st March 2003 by the 1st and 2nd Respondents – The Suspects were enlarged on bail.

14. Previously the 1st and 2nd Respondents were arrested by Police and remanded on suspicion as persons responsible for the assault on Anthony Michael Emmanuel Fernando.

15. The Petitioner states that when the Hospital Chaplain Rev. Fr. Ashok came to give Anthony Michael Emmanuel Fernando Holy Communion on 7th March 2003 Rev. Fr. Ashok was prevented by prison guards guarding him from giving Communion. Rev. Fr. Ashok was also prevented from giving a copy of the “Catholic Messenger” to Anthony Michael Emmanuel Fernando, which said acts the Petitioner states are serious violations of Anthony Michael Emmanuel Fernando’s right to practise his Religion.

16. The 1st and 2nd Respondents are employed as Prison Guards in the Welikada Prison. The 3rd Respondent is in charge of the Welikada Prison and the 4th Respondent is in overall charge of the Prison Department.

17. The 5th Respondent is the Official under whose purview the Prison Department functions and the 6th Respondent is cited in his capacity as the Chief Legal Officer of the State.

18. The Petitioner states that Anthony Michael Emmanuel Fernando’s fundamental rights of equal treatment before and equal protection of the law granted by Article 12(1) have been violated by the said acts by the Respondents.

19. The Petitioner states that Anthony Michael Emmanuel Fernando was subjected to cruel inhuman and degrading treatment by the Respondents violating his Fundamental Rights granted by Article 11 of the Constitution.

20. The petitioner states that Anthony Michael Emmanuel Fernando’s freedom to practise and observe his Religion guaranteed under Article 14(e) of the Constitution has been violated by prison officers guarding him in the National Hospital for whose actions the 3rd and 4th Respondents are responsible.

21. The Petitioner states that Anthony Michael Emmanuel Fernando has suffered immense physical agony consequent to the said assault. He is not in a position to move as he was assaulted on the spine and he vomits blood frequently. He loses consciousness and feels dehydrated. He has difficulty in the intake of food and experiences pain all over the body especially the stomach region as a result of being kicked on the stomach. The Petitioner states that in addition Anthony Michael Emmanuel Fernando has suffered mental agony as a result of the inhuman treatment meted out to him.

22. The Petitioner states that Anthony Michael Emmanuel Fernando has a son, wife and aged parents to support.

23. The Petitioner assesses the compensation payable by the Respondents to Anthony Michael Emmanuel Fernando at Rs. 1,000,000/- for the mental & physical harm caused to him.

24. The Petitioner has not invoked the Jurisdiction of Your Lordship’s Court in the identical matter

WHEREFORE the Petitioner Prays for:

a. Leave to proceed with the application
b. A Declaration that the Fundamental rights of Anthony Michael Emmanuel Fernando granted under Articles 12(1), 11 and 14(e) have been violated
c. Your Lordships Court be pleased to call for the Medical Report and JMO’s Report on the injuries inflicted on Anthony Michael Emmanuel Fernando
d. Compensation in a sum of Rs. 1,000,000/- to Anthony Michael Emmanuel Fernando
e. Costs
f. All such other and further relief as to your Lordship¡¯s Court shall seem meet

Attorney-at-Law for the Petitioner

—————–

14 March 2003

OPEN LETTER to the Chief Justice and the Two Judges Who Made the Order for One Year’s Imprisonment of Mr. Michael Anthony Emannuel Fernando on Charges of Contempt of Court

Your Lordships,

At the outset of this letter we, the Asian Human Rights Commission, want to assure you of the utmost respect with which we regard the office you hold. We consider that the highest guarantor of human rights is the judiciary. The Supreme Court should be the ultimate guardian of human rights in a country. We also hold that contempt of court is a despicable act that endangers the very fabric on which democracy and human rights rest.

In keeping with these beliefs, we have examined with great concern your contempt of court decision against Mr Michael Anthony Emmanuel Fernando (Ref: S.C. [F/F] No. 55/2003, 6 February 2003). We also draw your attention to the February 27 statement of the UN Special Rapporteur on independence of judges and lawyers, Mr. Param Cumaraswamy, on this case.

We have read your judgement and all of the papers filed by the applicant, Mr Fernando. We find that you have in fact abused the contempt of court proceedings and brought discredit to your institution, upon which the fundamental rights of the Sri Lankan people rely.

History demonstrates that the greatest danger to any democratic institution comes from within, when its personnel fail in their duty to take the greatest care to act within a democratic framework and with full respect for human rights. If a democratic institution is destroyed from without, it is possible for everyone who cares for democracy and human rights to rally and fight against its enemies. However, if an institution destroys itself from within, the means by which people can intervene to eliminate danger is limited. When a court disregards the norms and procedures of the rule of law, it endangers human rights and democracy more than any other agency.

It is with a deep sense of regret and humility, then, that we are obliged to point out that in Mr Fernando’s case you have disregarded all of the basic norms by which a court should arrive at a sentence of imprisonment. These basic norms stand irrespective of the alleged crime or any extenuating circumstances. In particular, it is not clear to us as to what act by Mr Fernando you considered contemptuous of your court. Is it that Mr Fernando did not abide by a timeframe that you imposed on him to make his submissions? If this is the case, what was the timeframe? Or is it that Mr Fernando used abusive words regarding any of your Lordships? If so, what were these words?

Whatever circumstances led to this contempt of court decision, the readers of your judgement have a right to know of them, and be satisfied that your sentence was reasonable. The judgement of a court is open to public scrutiny. It must be possible for a person to understand its factual and legal bases. In addition, a Supreme Court judgement in a common law jurisdiction sets precedents. Therefore, it must be based on sound principles that should guide generations to come.

While a court judgement can deter those who violate the law, it should never be a means to intimidate people. A courthouse should be a sanctuary of reason where a pleader courageously expounds his or her case and where the judges give a full, patient and fair hearing. Just as people owe respect to the courts, it is equally true that the courts owe respect to the people. Each individual coming before a court, whether a lawyer or layperson, has an inherent right to be listened to. This means that he or she is permitted to express ideas and opinions, irrespective of whether or not the court will agree with them.

While the final judgement lies with the court, it has no right to deny a pleader to a full and fair hearing. Attempts to deny the right to a fair hearing, which may be common among bureaucrats and even law enforcement officers who do not understand their functions, are not expected of a court. The court is a sacred place where a person comes as a last resort. It is the place where only the greatest norms, standards and reasoning are expected to prevail.

Your Lordships’ court has the powers necessary for proper administration of justice. Therefore, you also have the power to eliminate judgements that are in fact a miscarriage of justice. Looking at other jurisdictions, it is easy to find numerous examples where judgements have been reversed when a miscarriage of justice has been realized. Only recently, for instance, the House of Lords overturned a 50-year-old judgement in which the death sentence had been pronounced on a mentally retarded person. Many other judgements of this sort can be mentioned, and surely your Lordships will be aware of them. It follows that the Supreme Court of Sri Lanka too can correct a miscarriage of justice that has occurred in any court in the country, including itself.

Your judgement in the case of Mr Fernando poses a danger not only to him personally but to the entire judiciary. Both in the name of justice to Mr Fernando and also in order to regain respect for the judiciary itself, we urge your Lordships to use your powers and reverse the miscarriage of justice that has taken place in this case. The only reasonable step that can be taken is to reconsider your own decision, in order to erase the very serious negative impression that it has created.

Your Lordships must also know that Mr Fernando has been attacked several times while in custody, and is now in hospital with severe injuries. We do not in any way attribute specific responsibility for his condition to your Lordships. However, your Lordships do owe legal and moral responsibility to Mr Fernando, whom you entrusted to the custody of the prison authorities. They have failed to honour the trust your Lordships had in placing Mr Fernando in their safe custody. It is, therefore, the responsibility of your Lordships to enquire fully into this situation and take all appropriate action to protect Mr Fernando and also to bring those who are responsible for such careless disregard for your Lordships’ orders to account.

Your Lordships should also be aware of Mr Fernando’s present condition. We have received a highly credible report stating that “Regarding the mental state of Mr. Emmanuel Fernando, his condition is deteriorating and though he is conscious, he is shouting at the top of his voice. He was taken to Psychiatric Consultant at Angoda. But he is chained to the bed and he talks and tried to harm himself by banging his head on hard objects. He had head injuries [and] little bumps everywhere.”

It cannot be that your Lordships are helpless in this situation. The Supreme Court of India has set an example by taking the initiative to enquire into conditions for prisoners and taking suitable action there. Among its orders was the forbidding of the chaining of prisoners undergoing treatment in medical facilities. The Supreme Court in India acted even when the circumstances were less severe than in the case of Mr Fernando. It acted recognising its responsibility as the guardian of human rights in that country. Under the present circumstances, the moral credibility and authority of the Supreme Court of Sri Lanka is at stake. The people of the country need the Supreme Court and need it to be respected by everyone.

As a human rights organization deeply concerned with the deterioration of democracy and human rights in Sri Lanka over the last three decades, we, the Asian Human Rights Commission, urge you to deal with this whole case once more. We urge you to reconsider your decision regarding Mr Michael Fernando, and do so according to the principles, norms and standards of a court functioning in a democracy, in order to sustain the rule of law and the dignity of all people.

Thank you.

Asian Human Rights Commission

SUGGESTED ACTION

Please write to the express your grave concern regarding the torture case of Mr. Fernando and to urge the Sri Lankan government to guarantee the fundamental rights granted under the Constitution and law.

To support this case, please click here: SEND APPEAL LETTER