Justice Fernando was appointed to the Supreme Court bench on March 4, 1988, and his contribution to the law during his over 15 years on the bench has been remarkable. Justice Fernando’s judgments are clear and compelling in their analysis. They reflect that deep attachment to values of fairness and equality, to freedom of expression and freedom from torture and arbitrary arrest, unaffected by changes of political climate, which the public have the right to expect of any judge.
Mark Fernando’s judgments in the field of fundamental rights have naturally been of particular interest to the human rights community. In one case relief was given to a member of the SLFP, whose freedom of expression was infringed when the police forcibly stopped him from beating a drum in participating in the jana gosha, an island-wide cacophony of protest against the government’s policies[i].
In another, the complaint of a Wild-Life ranger succeeded, on the basis that the assault on him by private individuals (a State Minister and a Member of Parliament) inside a police station and in the presence of police officers amounted to "executive or administrative action"[ii]. The UNP mayor of Nuwara Eliya who seized 450 copies of the paper "Yukthiya" came within the ambit of "executive or administrative action" since she did this while purporting to exercise her functions and while acting under the colour of her office[iii].
Relief has been granted to a regular participatory listener of a programme of the Sri Lanka Broadcasting Corporation, who complained that the programme was abruptly stopped in mid-broadcast when a government Minister was criticized during a phone-in interview [iv].
A petitioner wrongfully detained under the Prevention of Terrorism Act succeeded on the basis, inter alia, that a remand order made by a magistrate without the suspect being brought face-to-face and without asking him what he has to say was not a "judicial act" but "executive or administrative action" for which the State was liable[v].
In striking down an emergency regulation which postponed five Provincial Council elections, Justice Mark Fernando held that the right to vote was part of the free expression guarantee provided in the Constitution, defined the nature and scope of the immunity granted to the President, and explained the powers and duties of the Commissioner of Elections in the context of maintaining his independence and ensuring elections [vi].
Very recently, he recognized the right to life as a fundamental right although not expressly provided in the Constitution, and that a third person may assert the rights of a deceased person and claim relief [vii]. In another case, which was not a fundamental rights petition, but a regular criminal appeal in a case of culpable homicide, Fernando J relied on the "fair trial" provisions of the Constitution, to hold that failure of the prosecution to disclose an eye-witness statement supposedly made to the police, was an additional ground for setting aside the conviction [viii].
Statements in these judgments particularly welcomed by the Civil Rights Movement, which for many years has been producing in three languages a series called The Value of Dissent, include "Stifling of peaceful expression of legitimate dissent today can only result, inexorably, in the catastrophic explosion of violence some other day", and "...democracy requires not merely that dissent be tolerated, but that it be encouraged."
CRM has also observed with pleasure Fernando J’s tendency to have regard to the Directive Principles of State Policy and Fundamental Duties in the Constitution, and to international human rights conventions, in arriving at his findings. As we know, Directive Principles and international conventions do not confer any enforceable rights in national courts, but consideration of these norms have contributed to the fundamental rights jurisprudence in this country. Of fifteen Sri Lankan cases published in the Commonwealth Human Rights Law Digest, eight are judgments of Justice Mark Fernando.
Justice Mark Fernando’s contribution to the law naturally goes well beyond the field of fundamental rights, though this is the area with which CRM is most familiar. An instance of clear public importance which came to our particular attention at the time was his ruling that a Provincial Council, in this instance the North-Eastern, is empowered to run a bus service within its Province[ix].
Resolving an awkward problem of statutory interpretation, as the Thirteenth Amendment appeared to mean the opposite (ie "without" but not "within"!), he quoted a US judge who said "The meaning of a sentence may be more than that of the separate words, as a melody is more than the notes". Fernando J continued: "In the symphony of devolution, the three Lists apportion to the Government and the Provincial Administrations their respective parts, and the single discordant note in List I, item 8 must be set right by a harmonious construction."
There are many equally noteworthy features in "statutory determinations" on constitutionality of Bills made by benches of the Supreme Court in which Justice Fernando was a member, such as the determination striking down various provisions of the proposed Postal Corporation, which again concerned a vital public service. In such cases the determination is issued as the judgment of the Court without being ascribed to any particular judge.
Those of us privileged to have known H.N.G. Fernando, Chief Justice, were delighted to find in the son an equally sharp mind coupled with an invariable courtesy and patience. During his retirement and long illness Justice Mark Fernando continued to follow legal developments and to give of his advice and ideas freely to all who sought them. His keen intellect, wise counsel, and gentle humour will be sorely missed.
Secretary, Civil Rights Movement
The above is adapted from a statement issued by CRM in 2003 on the premature retirement of Justice Mark Fernando.