According to the Rapporteur, in violation of the rule of natural justice which says that ‘no one can be his/her own judge’, the Chief Justice appointed himself to the panel which heard the second fundamental rights application. In addition, the court also sentenced Mr Fernando to a year’s imprisonment for contempt of court.
The Asian Human Rights Commission (AHRC) says that in sentencing Mr Fernando, the Chief Justice and the other two judges have also breached Sri Lanka’s obligations under the International Covenant on Civil and Political Rights. Mr Fernando had been denied a fair hearing, a charge sheet stating the offence and possible punishment, legal advice, sufficient time to prepare his case or reasons for the judgment. Mr Fernando has suffered severe torture in prison since the sentencing.
There have been a number of complaints against the Chief Justice’s conduct in the past. A 2002 book titled The unfinished struggle by Victor Ivan has exposed extensive misconduct and abuse of authority by Mr Sarath Silva when he was Attorney-General and as Chief Justice. According to the AHRC, there have been no official denial of the allegations made in the book, nor has the author been subjected to legal action.
In August 2001, the International Bar Association (IBA) concluded that there was ‘an overwhelming need for an independent credible judicial system’ in Sri Lanka. It detailed instances of lack of accountability, breach of natural justice and potential for undue interference and pointed that institutions which should be protecting the rule of law, including the President, government and the Chief Justice, were acting to undermine it.
The IBA said judges had been removed by the Chief Justice without enquiry and in June 2001, a parliamentary opposition impeachment motion to remove him was restrained by the Supreme Court which he heads.