HONG KONG: Concerns regarding the participation of Chief Justice Sarath Silva of Sri Lanka in a conference entitled “Hong Kong Basic Law: The First Ten Years and its Future”

June 18, 2007 

An Open Letter to the Acting President and the Dean of the School of Law of the City University, Hong Kong

1. Professor Richard Yan-ki HO (Acting President)
City University of Hong Kong
Tat Chee Avenue
Hong Kong SAR

2. Professor Peter MALANCZUK (Dean – School of Law)
City University of Hong Kong
Tat Chee Avenue 
Hong Kong SAR

HONG KONG: Concerns regarding the participation of Chief Justice Sarath Silva of Sri Lanka in a conference entitled “Hong Kong Basic Law: The First Ten Years and its Future”

Dear Sir,

I am writing this on behalf of the Asian Human Rights Commission regarding one of the speakers at your international conference, “Hong Kong Basic Law: The First Ten Years and its Future,” to be held from June 22 to 23, 2007.

One of the speakers scheduled to speak on the 23rd, from 9:45 to 11:00am, is the Hon. Sarath Silva, the Chief Justice of the Supreme Court of Sri Lanka who will speak on the Supreme Court of Sri Lanka and Constitutional Adjudication. We wish to place before you some information regarding this speaker for your perusal. Chief Justice Silva presided over a bench which sentenced a man to prison for one year’s rigorous imprisonment for talking loudly in court. When the man, Anthony Michael Emmanuel Fernando, challenged the decision by seeking special leave to appeal, Chief Justice Silva with the same bench dismissed the appeal. The United Nations Human Rights Committee found this judgment to have violated the human rights of Mr. Fernando. The committee stated:

…Article 9, paragraph 1 of the [International] Covenant [on Civil and Political Rights – International Covenant on Civil and Political Rights] forbids any “arbitrary” deprivation of liberty. The imposition of a draconian penalty without adequate explanation and within independent procedural safeguards falls within that prohibition. The fact that an act constituting a violation of article 9, paragraph 1 is committed by the judicial branch of government cannot prevent the engagement of the responsibility of the State party as a whole. The Committee concludes that the author’s detention was arbitrary, in violation of Article 9, paragraph 1…

The committee also recommended the Sri Lankan government to pay compensation for the illegal imprisonment of Mr. Fernando. However, compensation has not been paid on the basis that the government cannot go against the judgements of its domestic courts. So far, there are seven such views expressed by the UN Human Rights Committee on violations of rights of individuals in Sri Lanka and all except one relates to violations of rights through actions by courts. As such cases were increasing, Chief Justice Silva made another judgement which has now become internationally infamous stating that Sri Lanka’s becoming a party to the Optional Protocol of the ICCPR is ultra vires to the Constitution of Sri Lanka in that it empowers “a judicial power” – the Human Rights Committee at Geneva – to indicate a public law right on an individual within Sri Lanka in respect of acts that take place within the country. Thus, he held this to be inconsistent with the Constitution.

On the basis of this judgement the government of Sri Lanka now claims:

The government of Sri Lanka was unable to respond to the Human Rights Committee by submitting its observations, owing to the Supreme Court judgement in Nallaratnam Sinharasa’s Case. Which the government of Sri Lanka is conscious of its obligations in Treaties, Conventions and Protocols, it is also imperative that the Government of Sri Lanka respects the judgements of its domestic courts.

[The reply of the government of Sri Lanka to the communication under reference G/SO 215/51 SRI (16) MS/EAR/sn 1432/2005 dated 01.03.2007]

In this manner the Chief Justice has provided a means for the government to be free from the obligations it has undertaken on its own by signing the Optional Protocol to the ICCPR.

This has happened at a time that the United Nations High Commissioner for Human Rights and all the major international and local human rights groups including Amnesty International (AI), the International Commission of Jurists (ICJ), Human Rights Watch (HRW), the Asian Human Rights Commission (AHRC) and many other human rights organisations are complaining of grave violations in the country and are calling on the government to allow international monitors to observe the human rights situation as national mechanisms have failed.

The Marga Institute, a reputed Sri Lankan research institution, published a survey report in which 83% of the respondents said that the judicial system is corruptible. The Transparency International Global Corruption Watch Report for the year 2007, devotes a chapter to judicial corruption in the country and its recommendations include the constitution of an independent panel to inquire into the allegations against Chief Justice Silva and also steps to protect the lower judiciary from arbitrary and mala fide decisions of the Judicial Service Commission (JSC), of which Chief Justice Silva is the head.

Sri Lanka today is identified as a failing state and a place where the rule of law has collapsed. The Chief Justice of the country cannot be regarded as free from responsibility for this situation. We also wonder as to how Hong Kong may benefit from his speech on Constitutional Adjudication in Sri Lanka, except by treating the situation in Sri Lanka as an example of how the rule of law and the independence of the judiciary have been undermined.

We are bringing this information to your notice in the hope that you will give serious consideration to the facts placed before you. If this speaker remains on the panel we request that you will also place this material before the participants of the seminar, who have a right to be informed of the speaker’s background.

Please be informed that we are happy to furnish you with full documentary evidence to support the contents of this letter, upon request.

Thank you.

Yours faithfully,

Basil Fernando
Executive Director

Document Type : Open Letter
Document ID : AHRC-OL-021-2007
Countries : Hong Kong,