Remembering the judgments of Justice Mark Fernando

by Ruana Rajepakse


The late Justice Mark Fernando, P.C., or Justice M.D.H. Fernando as he is officially styled in the law reports, was an example of a judge who successfully shed all political affiliations when he assumed judicial office.

Regarded as a "UNP" lawyer who spent his early career in the chambers of H.W. Jayewardene QC, he is known to have had a hand in drafting the 1978 Constitution, although not perhaps the many aberrations that passed for amendments in the years that followed. In any event, following his elevation to the Supreme Court in 1988 he became a firm defender of the rights and liberties guaranteed by the fundamental rights chapter of the Constitution.

His judgments on the right to free speech, its relationship to the right to information, and his strong defence of the right of citizens to criticize and peacefully protest against their government are worth re-visiting today, when an atmosphere of fear and intolerance of criticism is once again taking hold of the country.

In July 1992 several opposition political parties including the SLFP decided to show their disapproval of the actions of the then Government and called on the people to stage a 15-minute "Jana Gosha" or noise protest. It was to include the ringing of temple and church bells, the beating of drums, the tooting of motor vehicle horns and the banging of saucepans.

An SLFP Pradeshiya Sabha member from Horana had his drum seized by the Police and broken into pieces while he himself suffered some injuries as a result of the assault. He filed a fundamental rights case against the policeman involved, alleging infringement of his right to freedom of speech and expression guaranteed by Article 14(1)(a) of the Constitution.

Upholding the petitioner’s claim, Justice Fernando delivering the judgment of the three member Bench, observed that at the time that the Police decided to stop the protest and used tear gas and baton charged the crowd they did not have reason to apprehend any breach of the peace but simply acted because anti-government slogans were being shouted.

This case is reported in [1993] Volume 1 of the Sri Lanka Law Reports under the title Amaratunga v. Sirimal. In the course of his judgment Justice Fernando said as follows: "The right to support or to criticize governments is fundamental to the democratic way of life, and the freedom of speech and expression is one which cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions."

In the case of Deshapriya v. Municipal Council, Nuwara Eliya which is reported in [1995] 1 Sri L.R. 362, the Mayoress of Nuwara Eliya, acting under colour of her office, seized 450 copies of the petitioner’s newspaper, thereby preventing their sale to the public. Once again the Court found an infringement of Article 14(1)(a) which guarantees freedom of speech and expression.

Justice Fernando delivering judgment stated thus: "The infringement of Article 14(1) (a) can take many forms and may be direct or indirect; the exclusion of anti-government news and views in newspapers controlled by the Government, particularly when it amounts to a denial of equal treatment or discrimination because of political opinion would be as much an infringement as the suppression (by force or otherwise) of such news and views in newspapers independent of the Government."

He then repeated what he had said in the Jana Gosha case quoted above and emphasized that "democracy requires not merely that dissent be tolerated but that it be encouraged".

The case of Wimal Fernando v. SLBC (1996) 1 Sri L.R.157 involved a non-formal educational programme broadcast by the SLBC which included listener participation. It covered a variety of topics including human rights, current affairs and legal issues. It was introduced in 1994 in the context of the new Government’s Media Policy which recognized the media’s right to expose corruption and misuse of power. However on February 6, 1995 the programme which was being transmitted live was suddenly stopped after two Government Ministers had been criticized and also tried to put the blame on each other for failing to resolve a strike at a major factory. No further editions of this participatory programme were broadcast thereafter.

The petitioner who was a participatory listener claimed that his fundamental rights had been infringed by the arbitrary stoppage of the programme. Holding with the petitioner, Justice Fernando observed as follows:

"Article 14(1) (a) of the Constitution is not to be interpreted narrowly. Not only does it include every form of expression, but its protection may be invoked in combination with other express guarantees (such as the right to equality); and it extends to, and includes, implied guarantees necessary to make the express guarantees meaningful. Thus it may include the right to obtain and record information, may be by means of oral interviews, publications, tape-recordings, photographs and the like, and, arguably, it may even extend to a privilege not to be compelled to disclose sources of information if that privilege is necessary to make the right to information ‘fully meaningful’."

In the Eppawela phosphate mining case (Bulankulama v. Ministry of Industrial Development, decided in 2000) it was a Bench presided over by Justice A.R.B. Amerasinghe that wrote the final judgment. However at the stage where leave to proceed was sought, the case came before a Bench headed by Justice Fernando, and a preliminary issue arose about the unsigned copy of the impugned agreement that the petitioners had produced, as the agreement had not been officially released to the public. Justice Fernando thereupon directed the respondents to forward to the Court Registrar within one week a certified copy of any signed investment agreement pertaining to the Eppawela phosphate deposit. However the respondents avoided making any admissions by thereafter agreeing to accept the copy filed by the petitioners.

In Heather Therese Mundy v. Central Environmental Authority and others, decided in 2004, which was an appeal to the Supreme Court from the refusal of a writ application in the Court of Appeal, Justice Fernando emphasized the importance of Article 126(3) of the Constitution which allows for such applications to be referred to the Supreme Court when there is prima facie evidence of an infringement of fundamental rights.

In that case which involved the acquisition of land for the Matara – Colombo Expressway, three petitioners had been deprived of a chance of participating in the Environmental Impact Assessment procedure and also missed the chance of applying for compensation because their lands were not on the "original trace" or a subsequent "combined trace" for the expressway, but had got included when the planners at a later stage had deviated from the combined trace and made a "final trace" that included the lands of persons who had had no prior notice that they were on the proposed route.

Pointing out that the Court was no longer confined to the scope of the old "prerogative writs" that had come down to us from English law, Justice Fernando observed that the principles and provisions laid down in the Constitution "have shrunk the area of administrative discretion and immunity, and have correspondingly expanded the nature and scope of the public duties amenable to mandamus, and the categories of wrongful acts and decisions subject to certiorari and prohibition, as well as the scope of judicial review and relief".

So saying, the Court awarded each of the appellants a sum of Rs.75,000 for the infringement of their right to equal treatment under Article 12(1) of the Constitution, which would be in addition to the compensation payable to them under the Land Acquisition Act for the acquisition of their lands. In addition a sum of Rs. 50,000 was awarded to each appellant as costs. It was a lesson to the authorities that the violation of citizens’ rights will cost them heavily.

For many years Justice Fernando was the longest serving judge on the Supreme Court Bench. It fell to President Chandrika Kumaratunga to determine whether he would follow in the footsteps of his illustrious father Chief Justice H.N.G. Fernando and become the head of the apex Court, but despite his many progressive judgments the President apparently still perceived him as a "UNP" judge and passed him over in favour of the then Attorney-General Sarath N. Silva, PC.

In an ironic twist of fate it was a Bench headed by Chief Justice Silva that cut short President Kumaratunga’s term of office by six months in a judgment that the present Supreme Court has declined to follow. However by that time Justice Mark Fernando, apparently feeling himself sidelined from the constitutional cases that had been his forte, opted for premature retirement in 2005. He died after a long battle with cancer in January 2009.

Meanwhile the battle for freedom of expression has taken a darker turn in Sri Lankan society. In the judgments discussed above, the violations were committed by identifiable agents of the State in the form of police officers or other functionaries who could be held personally accountable, and through whom the State could be held accountable.

Today the violators of media freedom are mobs who come in buses or masked men in unmarked vehicles. They do not make arrests; they fire-bomb media premises or kill or abduct journalists. They come and go with impunity through high security zones. It will be a challenge for the media and the legal system to find a way of dealing with this new scenario.

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