The United Nations Human Rights Committee (UNHRC) on 9 January 2004 informed the Sri Lankan government that, in pursuant of Rule 86 of the committees rules of procedure, the state party (Sri Lanka) should adopt all necessary measures to “protect the life, safety and personal integrity of the author (Michael Anthony Emanuel “Tony” Fernando) and his family members in order to avoid irreparable damage to them and to inform the committee on the measures taken by the state party in compliance with the decision within 30 days from the date of this Note Verbale, that is, no later than 9 February 2004.”
However, on 2 February, an attempt was made by a group of people on the life of “Tony” Fernando who narrowly escaped being kidnapped and possibly assassinated. While Mr. Fernando was walking out of his house in the morning, chloroform was sprayed on his face by a person while a van pulled nearby to take him away. He managed to escape though by running in the opposite direction and sought help by entering a tailor shop whose proprietor he knows. He was then taken to Kalubowila Hospital where he is now being treated.
This violent incident raises very serious issues as to whose responsibility it is to ensure that the Sri Lankan government implements the UNHRCs interim measures that were issued to it. On the same day when these interim measures were being drafted, the Sri Lankan high commissioner in Geneva would have been informed of this decision in writing. It is the duty of the high commissioner to transmit this information to the minister of foreign affairs as soon as possible. On receipt of this information, it would be the duty of the minister of foreign affairs to inform the government of such an important decision by the UNHRC. Given the importance of the decision, it would have been the right of the president, the prime minister and the cabinet to know about the communication from the UNHRC.
Once the government is informed about the UNHRCs decision, the relevant authorities would be informed to take immediate action on the basis of the communication. In this particular instance, the two most relevant authorities are the attorney general and the inspector general of police (IGP). If the attorney general and the IGP had been informed by the government of the interim measures, it can be presumed that under normal circumstances they would take immediate action to see that they are implemented and would report back to the government of the actions that had been taken. The fact that no action has been taken suggests that either the attorney general and the IGP were not informed about the relevant interim measures or they neglected to attend to the matter after receiving this information. Whatever the case, Mr. Fernando did not receive any form of protection despite the interim measures; and as a result of this failure, he was subjected to a brutal attack which could have ended with even more drastic consequences than those that he is presently suffering.
It is now the duty of the government to examine how the interim measures issued by the UNHRC were so completely ignored at the risk of causing such enormous embarrassment to the Sri Lankan government in terms of its obligations under the U.N. human rights treaties and as a signatory to the Second Protocol to the International Covenant on Civil and Political Rights (ICCPR).
The failure of the Sri Lankan government to adequately implement the UNHRCs interim measures thus raises a number of important questions. At what point, for instance, did the government fail to ensure its compliance with these interim measures? At whose desk did the communication from the UNHRC stop? These are serious questions that will likely be raised before the UNHRC and also in the public debate, both locally and internationally.
The attack on Mr. Fernando generates further serious questions as well. For example, has Sri Lanka developed a procedure to deal with its treaty obligations, particularly in terms of treaties of which it has become a state party in relation to the United Nations? What stipulated procedure exists for dealing with communication from the relevant international authorities? Above all, in terms of the great importance of the UNHRC, is there any existing mechanism to implement and respond to their communication specifically?
While these matters await thorough scrutiny in the future, priority needs to be given to the governments immediate compliance with the interim measures even at this late stage. Mr. Fernando is now in the hospital undergoing treatment and should be given the protection available to him as a citizen of Sri Lanka and in response to Sri Lankas international obligations. The duty to provide direct protection lies with the IGP. The duty to see to the overall implementation of the interim measures lies with the attorney general. It is up to them to act promptly and boldly now to demonstrate the governments willingness and capacity to protect its citizens.
Before 9 February, the Sri Lankan government must inform the UNHRC about the measures it has taken to protect the life of Mr. Fernando. This report must now include the reasons behind its failure to provide protection for Mr. Fernando up to 2 February. Furthermore, what will the government report about the measures taken since 2 Feb. for the protection of Mr. Fernando?
The perpetrators of the incident 2 February are still at large. Who are they? Under whose instructions were they engaged in this act? What was the complete design of these perpetrators? These are matters that would be of interest, not only to Mr. Fernando, but also to the public at large. The duty to provide answers to these questions and others and to bring the perpetrators to justice lies with the Sri Lankan government. How this will be done in the coming days will be watched not only by the Sri Lankan people but also by large audiences of concerned members of the international community.
– Asian Human Rights Commission
