This week the Supreme Court of Sri Lanka decided that prison officers had violated the rights of a man who was severely tortured while he was in prison custody. The ruling relates to an incident that took place on Feb. 10, 2003. Despite the five-year delay, the Supreme Court’s judgment and the awarding of 150,000 rupees (nearly US$1,400) in compensation will be welcome news to many people in Sri Lanka who followed the highly publicized and controversial case of torture victim Tony Fernando.
Of the three-judge bench, Dr. Shirani Bandaranaike and Jagath Balapatabendi held the majority view, while Justice Nimal Gamini Amaratunga held a dissenting opinion.
The controversy relating to the treatment of Tony Fernando will surely long remain in the annals of the judicial history of Sri Lanka. The United Nations Human Rights Committee had earlier found, in response to a communication from Fernando, that the Supreme Court itself had violated Article 9 (1) of the International Covenant on Civil and Political Rights by illegally detaining Fernando in prison for one year.
The alleged reason for his imprisonment was that Fernando had spoken loudly in court. He had filed an application relating to a labor dispute, claiming he had failed to obtain justice from his employers. His fundamental rights application was initially dismissed by a bench headed by the chief justice.
Fernando wanted to revive his application and wanted the case to be heard by judges other than those who initially heard the case. However, the same judges sat to hear this motion and sentenced him to one year’s rigorous imprisonment, allegedly for talking loudly in court.
Fernando’s lawyers appealed against this imprisonment, but the same judges that imposed the sentence would not grant leave to proceed with the application. Fernando refused to offer an apology to reduce his jail sentence as he believed 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 party is under an obligation to avoid similar violations in the future.
The UNHRC further ordered that the government should report on the implementation of its recommendation within 90 days. However, to date, no compensation for illegal imprisonment has been granted to Tony Fernando in accordance with the decision. The government took the view that since, in a separate case — the famous Singarasa case — the Supreme Court held that UNHRC decisions have no binding effect within Sri Lanka, the government would not implement the decision of the UNHRC.
Recently the Supreme Court, 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 government’s obligations to honor the recommendations of the UNHRC in cases like that of Fernando.
The present judgment 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. Fernando should be congratulated for having 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 fact that even in the most difficult situations the struggle for justice must continue. The lessons that such struggles leave are much more important than the compensation obtained from the court. The ultimate beneficiaries of the struggles of Tony Fernando and his supporters are the Sri Lankan people. Many in this country did not come forward to support Fernando. However, they can now benefit from his struggle. It is only citizens with courage to struggle, like Tony Fernando, who can uplift the dismal rule-of-law situation in the country.
What will happen to the prison officers found by the Supreme Court to have tortured Fernando? Under Sri Lankan law torture is a serious crime carrying a mandatory sentence of seven years of rigorous imprisonment and a fine of 10,000 rupees (US$93). It is the duty of the inspector general of police and the attorney general to prosecute the two prison guards, and it is to be hoped that the prison authorities will dismiss the two officers.
Source: Court vindicates tortured prisoner
Filed under: corruption, human rights, Human Rights Commission, justice, police, rule of law, Sri Lanka, torture
