"A Historic injustice"

A response to S.L. Gunasekera

In an unnecessarily argumentative and aggressive rejoinder ( 29 January 2012 ), he claims that my article contains "a litany of accusations against H.N.G. Fernando". I wish to state at the outset that I have made no accusations whatsoever against H.N.G. Fernando. He was a judge whom I knew personally and professionally for several decades, and for whom I had great respect and affection. He possessed one of the finest judicial minds, and belonged to that golden era of the Supreme Court of Ceylon - the period of its high water mark - the Court before which I had the privilege to practise.

l by Nihal Jayawickrama

(February 05, Colombo, Sri Lanka Guardian) When I wrote ‘"A Historic Injustice" in the Supreme Court – The Facts’ ( 15 January 2012 ), I did so in order to provide the factual basis for certain events described by S.L. Gunasekera in his recent book, "Lore of the Law and Other Memories". Gunasekera’s information was based on anecdotal evidence and suppositions. I was a witness to those events. I furnished the facts in good faith, to help complete the narrative; to supplement, rather than to contradict (except in respect of one matter). Gunasekera’s response has been to allege that I had fabricated them. He does not say why I would do so. The only reason I intervened was to share certain facts I possessed, but which apparently were not known to him when he wrote what I still consider to be an outstanding commentary on the deplorable state of our judiciary and legal profession.

In an unnecessarily argumentative and aggressive rejoinder ( 29 January 2012 ), he claims that my article contains "a litany of accusations against H.N.G. Fernando". I wish to state at the outset that I have made no accusations whatsoever against H.N.G. Fernando. He was a judge whom I knew personally and professionally for several decades, and for whom I had great respect and affection. He possessed one of the finest judicial minds, and belonged to that golden era of the Supreme Court of Ceylon - the period of its high water mark - the Court before which I had the privilege to practise. In 1970, when I was called upon to briefly serve in the office of Attorney General, it was H.N.G. Fernando who administered my oath of office. In fact, it was following his retirement from the office of Chief Justice in 1973 that relations between the Supreme Court and the Ministry of Justice began to deteriorate.

Not politically motivated

Gunasekera continues to assert that H.N.G. Fernando’s appointment to the Supreme Court was "politically motivated", and rejects my statement that it was probably personally inspired. In this connection, it is relevant to recall that B.P. Peiris, in his award-winning "Memoirs of a Cabinet Secretary", describes a conversation he had with the then Prime Minister sometime around mid-1953:

"Dudley phoned me on a Sunday morning and wanted to see me at Temple Trees at noon. He wanted to speak to me about H.N.G. Was he suited to the Bench? I was asked. I said that in my opinion he would make an excellent judge. The Prime Minister replied that he had only been a draftsman and did not appear to have had much court experience."

Does the Prime Minister’s query suggest that he was desperately anxious, for political reasons, to make the Legal Draftsman a Judge? Why then, was he not appointed when the December 1953 vacancy occurred, a vacancy for which the Government chose M.C. Sansoni? Or, was it more likely that it was H.N.G. Fernando who desired to wear the judicial robes his father was able to don for only two months due to his untimely death? In this connection, it is perhaps of some relevance to note the following paragraph in the Peiris Memoirs:

"Soon after H.N.G. became Legal Draftsman, he applied for silk. Alan Rose, the Attorney General, sat on the file and nothing came of it. But other honours were to come his way, and the greatest honour was when he was made Puisne Justice and wore his late father’s scarlet robes".

Gunasekera rejects my description of the circumstances in which H.N.G. Fernando was appointed to act for the Solicitor General, T.S. Fernando Q.C., during the latter’s absence from the country. The fact that H.N.G. Fernando suggested to T.S. Fernando that he take leave for a few months to enable him to act for him and thereby qualify for appointment to the Supreme Court was probably known to senior members of the Attorney General’s Department, and to some Queen’s Counsel as well. I am certain that Justice E.H.T. Gunasekera knew of it, because he was a regular visitor to T.S. Fernando’s home, and was a person whose advice he sought on certain occasions. However, I am not surprised that the Judge did not share that knowledge with his then 11-year old son.

That visit to the U.S.

Gunasekera describes H.N.G. Fernando’s statement to T.S. Fernando that the American Ambassador was willing to facilitate his leave by inviting him to visit the United States to "study the American legal and judicial systems" as an "inducement" or a "bribe" which neither of them would have colluded in. To have done so would have been "to act in a wholly cheap and dishonourable manner", asserts Gunasekera. In fact, the invitation to visit the United States had initially been extended to Justice Gratiaen, then Chairman of the Criminal Courts Commission. But Gratiaen was willing to let it be offered to T.S. Fernando, who had accompanied him to London in the previous year to study the Office of the Director of Public Prosecutions, an institution which his Commission intended to recommend. It was certainly not a "holiday", as Gunasekera contends, and I have documents that establish the contrary.

Gunasekera questions whether it is conceivable that T.S. Fernando would have agreed to H.N.G. Fernando’s request to help him to qualify "for the job for which they both aspired"? Truth is sometimes stranger than fiction. The fact is that he did, and I was a witness to that episode. Perhaps the 46-year old T.S. Fernando was not in a hurry to wear the scarlet robes. Perhaps he preferred to act in the office of Attorney General for the next two years, until the general election of 1956. If the office of Chief Justice was the pot of gold that he yearned for, he would surely have accepted the invitation from Prime Minister S.W.R.D. Bandaranaike in 1957 to leave the Court and be the permanent Attorney General (see Hansard of June 1959). Had he done so, he would have succeeded H.H. Basnayake as Chief Justice in 1964. As it turned out, the two Justices Fernando often sat together for several years, and were responsible for many of the critical and ground-breaking public law judgments of the time, especially in respect of the exercise of judicial power under the Constitution.

The compromise solution

Gunasekera also rejects as "scarcely credible" my reference to the compromise that Prime Minister Dudley Senanayake sought to achieve in 1966 by suggesting that the then senior judge H.N.G. Fernando "give way" to enable T.S. Fernando to serve two years as Chief Justice before H.N.G. Fernando assumed that office. He writes that H.N.G. Fernando would not have "stooped so low as to play a game of ‘one upmanship’ in the manner of a common or garden politician" by insisting on T.S. Fernando "making a request of him personally in respect of an appointment which was not his to make". I cannot produce any documentary evidence in support of my statement. I was present, following both visits of J.R. Jayewardene to T.S. Fernando’s home, when surprise was expressed at what was perceived to be an uncharacteristic and ungenerous response from one who had previously benefited from another "giving way".

The Court of Appeal

Finally, Gunasekera insists that the Court of Final Appeal was established "purely to oblige Jayawickrama, the political appointee to the post of Permanent Secretary to the Ministry of Justice by correcting a historic injustice done to his uncle T.S. Fernando". The suggestion that the Cabinet of Ministers decided to establish a new Court, that Parliament agreed to enact enabling legislation, and that the Prime Minister recommended the appointment of a particular individual "purely to oblige Jayawickrama" is so bizarre that it does not warrant a response from me. The Court of Appeal was established on 20 November 1971 and commenced its sittings in March 1972 (and not on 9 March 1973, as he claims), and functioned until 31 December 1973. The four judges initially appointed to that court were T.S. Fernando (65), V. Sivasubramaniam (64), A.L.S. Sirimanne (63) and G.T. Samarawickreme (56). They were all appointed for a fixed, constitutionally guaranteed, five-year term.

On 20 March 1972, the new Minister of Justice, Felix R Dias Bandaranaike, submitted a cabinet paper in which he proposed the abolition of all the existing courts (including the Court of Appeal and the Supreme Court) and their replacement with a new judicial structure comprising a new Supreme Court, High Courts, District Courts and Magistrates Courts. For the new Supreme Court, he proposed a retirement age of 65, but also proposed that, notwithstanding the age limit, all the existing judges of the Court of Appeal be offered appointment until the expiry of their fixed-term appointments. On 5 April 1972, the Cabinet approved the recommendations and authorised legislation to be prepared and presented after the adoption of the new Constitution. T.S. Fernando was informed that he will be designated as the first President of the new Supreme Court, and his other colleagues agreed to their seniority being determined in the new Supreme Court by reference to their dates of appointment to the old Supreme Court. In the Ministry, we proceeded to add a new section on "Courts" to the draft reform legislation on criminal, civil and appellate procedures that were being prepared.

In mid-1973, certain events occurred that led the Cabinet to revisit its decision. On 26 June 1973, shortly after the Cabinet had approved the draft Administration of Justice Bill that provided for the absorption of all the Judges of the Court of Appeal irrespective of age, the Attorney General, Victor Tennekoon QC, applied for immediate retirement from his office. On the following day, he withdrew his letter of retirement and instead applied for immediate leave. In the twenty-four hours that intervened between these two dramatic communications, Victor Tennekoon had discussions with both the President of the Republic and the Prime Minister. At its first meeting held thereafter, the Cabinet reviewed the Administration of Justice Bill and decided that it should be amended to provide that no person who was over 63 years of age should be appointed to the new Supreme Court. On 2 August 1973, Victor Tennekoon was appointed to the Court of Appeal as its fifth member. Shortly thereafter, it was announced that he would be the Chief Justice of the new Supreme Court with effect from 1 January 1974.

A political appointee

Gunasekera has repeatedly referred to me as "a political appointee". He ought to know that all Permanent Secretaries under the 1946 and 1972 Constitutions (including his father) were political appointees in the sense that they were appointed by the Governor-General (later the President) on the recommendation of the Prime Minister. They were regarded as being sui generis, not members of the civil or judicial services, and not subject either to the Public Service or the Judicial Service Commissions. They were not being "infiltrated" into an existing service, in the way that "outsiders" are now being infiltrated into the overseas service.

If what Gunasekera means is that I was not previously a public servant, then neither were Professor H.A.de S. Gunasekera, Dr Premadasa Udagama and Doric de Souza (from the Universities) and Dr C.E.S. Weeratunge, Dr Nath Amarakone, Walter Jayawardene QC and Somasara Dassanayake (from the medical, engineering and legal professions, respectively) who were appointed along with me. In fact, four others – Dr J.B. Kelegama, M. Chandrasena, Mahinda Silva and Dr P.B. Karandawela were also not members of the public service, I believe, when they were appointed in 1970. I may mention that I was not a member of any political party, then or thereafter.

Gunasekera asks why I did not resign in protest whenever I disagreed with the Minister. In the Ministry, I was conscious of the limits of my authority, and accepted that the formulation of policy was a matter for the politicians. There were occasions when the Minister trespassed into my legitimate territory, and that called for resistance, not resignation. Both the Prime Minister and the Minister encouraged the expression of divergent and dissenting opinions, and these were sometimes expressed with great emotion. But, at the end of the day, if I failed to convince either of them, I did not consider that to be a matter for resignation either. Surely, one did not quit the Bar because a case was lost. Tomorrow was another day.