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UN tells Govt. to change its contempt laws
In deciding that the committal of lay litigant Anthony Michael Fernando to a term of one year rigorous imprisonment for contempt of court by Sri Lanka's Supreme Court violated his right not to be arbitrarily deprived of his liberty, the Geneva based United Nations Human Rights Committee has directed Sri Lanka to make such legislative changes as are necessary to avoid similar violations in the future.

The State has been further directed to pay Mr. Fernando compensation for the violation of Article 9(1) of the International Covenant on Civil and Political Rights, (ICCPR), and to respond to the Committee regarding the measures taken to give effect to its Views within ninety days of the decision.

It has also stated that the State cannot absolve itself of responsibility merely on the ground that actions of the judiciary are in issue. The Communication of Views delivered on 31, March 2003 will be filed of record in the United Nations General Assembly as part of the Committee's annual report.

Commenting on the decision, Mr. Fernando told The Sunday Times, "This is not a victory for myself. It is a victory for all those who stood up for justice and fair play, democracy, and the independence of the Judiciary in Sri Lanka. I would not wish that what I suffered would be undergone at any point by anyone else again. I came to court in the morning, was imprisoned in the afternoon and thereafter tortured and hospitalised. I was in prison for eight months. Many people turned away because my case was too controversial. There is some justice achieved now. But can money compensate me for all that I have suffered merely because I went into court one morning?"

Tony Michael Fernando, formerly an English teacher and father of an infant son, was sentenced to one year rigorous imprisonment by a Supreme Court bench consisting of Chief Justice Sarath Nanda Silva and Justices Yapa and Edussuriya in February 2003 for raising his voice in court and persisting in filing fundamental rights applications. A later application urging the Court to revise its earlier order was dismissed by a bench of the same judges. Thereafter, he appealed to the Geneva based UN Committee in an individual communication pleading that his imprisonment violated Covenant rights.

He was represented before the UN Committee by lawyers Kishali Pinto-Jayawardena and Suranjith Hewamanne. His appeal was assisted by the International Centre for the Protection of Rights (INTERIGHTS), United Kingdom, the Asian Human Rights Commission, Hong Kong and the World Organisation Against Torture, Geneva.

Deciding in his favour, thirteen jurists of the UN Committee agreed without dissent that though courts, notably in common law jurisdictions, traditionally enjoy authority to maintain order and dignity in court debates by the exercise of a summary power to impose penalties for contempt of court, "no reasoned explanation has been provided by the court or the State party as to why such a severe and summary penalty was warranted in the exercise of the court's power to maintain orderly proceedings."

The Committee observed that the only disruption indicated by the State party is the repetitious filing of motions by Mr. Fernando for which an imposition of financial penalties would have been sufficient and one instance of 'raising his voice' in the presence of the court and refusing thereafter to apologise.

It stated further: "Article 9(1) of the Covenant forbids any 'arbitrary' deprivation of liberty. The imposition of a draconian penalty without adequate explanation and without independent procedural safeguards falls within that prohibition. The fact that an act constituting a violation of Article 9(1) is committed by the judicial branch of government cannot prevent the engagement of the responsibility of the State party as a whole."

Individual communications by citizens who feel that the organs of the Sri Lankan state, including the judiciary, have violated rights secured under the Covenant can be lodged before the Committee consisting of eminent and well respected jurists drawn from countries who have ratified or acceded to the Covenant as well as its Optional Protocol.

Article 2 (2) of the Covenant obliges every State party subject to the Covenant to take necessary steps to adopt such legislative measures as may be necessary to give effect to the rights recognised in the Covenant.

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