Item 3: Administration of Justice, Rule of Law and Democracy (IYCS)

Administration of Justice - Discrimination against Human Rights Defenders and limitations of national remedies - the case of Sri Lanka

Madam Chairperson, in the light of the preliminary paper of Ms. Leila Zerrougui, on the Discrimination in the criminal justice system and its special focus towards vulnerable persons and detecting discriminations in matters relating to procedure as well as substance, we would like to bring to the attention of the Sub Commission the challenges faced by Human Rights Defenders in obtaining redress through national justice systems.

In many instances, state officials, especially the police and security forces regard Human Rights Defenders as persons who obstruct their work and they are subject to harassment. In such situations, the Human Rights Defenders have to fall back on the justice system, but unfortunately, in many countries, the wheels of the justice system too seems to discriminates Human Rights Defenders.

To illustrate the situation, we would like to present the case of Sri Lanka, and in particular, the case of Mr. Michael Anthony Emmanuel Fernando, a Human Rights Defender, who remains unjustly imprisoned since 6th February 2003, in what the UN Special Rappoteur on the Independence of Judges and Lawyers, Dato Param Cumaraswamy, has termed "a flawed judicial process". Mr. Fernando, who is the Secretary of the Lakjana Human Rights Organization, was convicted for contempt of court by the Supreme Court of Sri Lanka while presenting a writ before the same court, and sentenced to one years rigorous imprisonment. We consider the sentence as excessive, for a charge of contempt of court, especially considering the fact that Mr. Fernando is not a lawyer and that he was conducting his own case at the time of sentencing.

1. According to article 14 of the ICCPR, to which Sri Lanka is a party, everyone is entitled to a fair hearing by an impartial and independent tribunal. In Mr. Fernando's case, he was clearly denied a fair hearing, and the tribunal was not independent, nor impartial, as one of the respondents, the Chief Justice, Honourable Sarath N. Silva, himself was part of the presiding panel of judges hearing the case. Mr. Fernando's written motion before the case was taken up and the oral application in court, requesting that the Chief Justice not be a member of the panel of judges, was ignored.

This was also in violation of section 49 (3) of the Sri Lankan Judicature Act, which stipulates that any judge who is a party to or personally involved in a proceeding or matter, should be heard by another judge.

Moreover, we also submit that this judicial process was contrary to principles of natural justice.

Thus, not only was Mr. Fernando's Human Rights violated under article 14 of the ICCPR, but the conviction and sentencing of Mr. Fernando by the panel of judges was made without jurisdiction and thus, the said order has no legal standing, which follows that the conviction and the sentencing is also invalid.

2. Furthermore, Mr. Fernando's rights under article 14.3c of the ICCPR was also violated as,

• He was not given a charge sheet stating the offence, possible punishment, summary of evidence against him
• He was not given sufficient time to prepare his case
• He was not given the opportunity to have legal advice,

3. Madam Chairperson, based on the above facts, Mr. Fernando made a revision application to the Supreme Court, which was heard by the same court on 2nd June. Again, the Chief Justice was a member of the panel of judges, again denying the applicant a fair hearing under an independent and impartial tribunal and thus violating article 14.1 of the ICCPR. On 17th July, the said panel of judges rejected Mr. Fernando's revision application, ignoring the UN Special Rappoteur´ss call to "remedy the injustice" and public outcry locally and internationally.

4. Madam chairperson, since the decision was by the highest court in the country and the same court also rejected the revision application, there exists no other national mechanism for the victim to seek justice. Thousands of Sri Lankan people and many organizations, as well as the international community have appealed to the government, but the government is either reluctant or unable to ensure justice to Mr. Fernando.

5. Furthermore, inspite of the special interest and efforts of the UN Special Rappoteur on the Independence of Judges and Lawyers, the submission made during the 59th session of the Commission on Human Rights and the individual communication to the UN by the victim, Mr. Fernando remains a prisoner todate. We would also like to note that Mr. Fernando has been tortured while being taken to prison and denied access to proper medical care and clothing while in custody.

6. Madam Chairperson, this case is just a current example of the fate of Human Rights Defenders who seek justice from national justice systems. In this context, where there is no protection from the justice system itself, Human Rights Defenders are even more vulnerable in promoting and protecting human rights. This type of situation results in Human Rights Defenders losing their confidence, faith and trust in the national justice system. In the larger context of the lack of confidence of the poor, marginalized people in the justice system, this is an alarming trend.

7. It should be noted that Mr. Fernando is not the first person to file fundamental rights petition against the Chief Justice in Sri Lanka. Infact, the present government itself had brought a motion of no confidence against the same Chief Justice, when it was in the opposition. In the words of the UN Special Rapporter on the Independence of Judges and Lawyers, "The Supreme Court of Sri Lanka has done an act of injustice. A man who came to seek justice was served with injustice".

8. Madam Chairperson, as mentioned above, Mr. Fernando remains a prisoner todate. Since all domestic remedies have been exhausted, we urge this Sub Commission to urge all relevant UN bodies and agencies to prevail upon the Sri Lankan government to ensure that justice is done to Mr. Fernando and credibility of the Supreme Court and Justice system in Sri Lanka is restored. We believe that as long as the judgment in the case of Mr. Fernando's case is not reversed, Mr. Fernando is not released and duly compensated, it is impossible to regain confidence of Human Rights Defenders and marginalized people in institutions and systems entrusted with the administration of justice in Sri Lanka.

9. We also request the Special Rappoteur to pay special attention to the situation of Human Rights Defenders, viz a viz the justice systems, as she continues her study.

Thank you.