"A Historic Injustice"

In The Supreme Court - The Facts


BY Nihal Jayawickrama

In his recently published extremely readable book, "The Lore of the Law and Other Memories", S.L. Gunasekara provides a graphic account of the depths to which this country’s judiciary and the legal profession have sunk. It is a damning indictment by one of Sri Lanka’s most senior lawyers. In the main, it is based on the author’s own personal experience spanning 47 years at the Bar, and that lends it both authenticity and credibility. The events prior to that period are, of course, based on anecdotal evidence. In respect of one such event, to which I am probably the only surviving witness, I wish to place on record the facts as they occurred. They are substantially different from those recorded by Gunasekara.

Gunasekara states that "the first notable instance of an attempt to interfere with the judiciary and have appointed one whom the executive thought would be favourable to it came in the case of the appointment of H.N.G. Fernando, the Legal Draftsman and Acting Solicitor General, when the Solicitor General, T.S. Fernando QC, had gone abroad on an official assignment." He correctly notes that the Solicitor General was regarded as the "one down batsman", while the Legal Draftsman "never had a look in". He also brings me into the picture, in respect of a later but related event, as "the son of T.S. Fernando’s widowed sister who had been brought up in T.S. Fernando’s house". In fact, I lived in my uncle’s home from the age of eight, when I entered Royal Primary School, while my parents lived in Galle where my father practised law until his untimely death when I was fourteen years old.

An unusual request

H.N.G. Fernando’s appointment to the Supreme Court took place in somewhat different circumstances from that recounted in the book. It appeared at the time to have been more personally inspired than politically motivated although, as a "regular" at the Orient Club, he probably had powerful friends in Government. I recall a Saturday afternoon in about July 1953 when H.N.G. Fernando walked down the hundred yards or so that separated his home from that of T.S. Fernando in Barnes Place, Colombo, to inform the latter that the Government wished to appoint him (HNG) to the next vacancy on the Supreme Court due to occur in December of that year, but that Attorney General H.H. Basnayake QC had ruled that the Legal Draftsman was not eligible for such appointment.

Judges of the Supreme Court, according to the Attorney General, should be drawn from among judicial officers or members of the official or unofficial Bar. He, therefore, had a request to make of his friend, colleague and neighbour. Would T.S. consider taking leave for a few months to enable him to act in the office of Solicitor General and thereby qualify for appointment to the Supreme Court? Before the request could begin to sound preposterous, H.N.G. Fernando proceeded to explain that he had already spoken with the American Ambassador who had assured him that the State Department would be happy to invite T.S. Fernando to visit the United States for three months "to study the American legal and judicial systems". He also mentioned that it had been the wish of his father, the late Justice V.M. Fernando, that he too should become a Judge of the Supreme Court.

An unexpected turn of events

As Gunasekera has correctly noted, the Solicitor General was regarded as the "one-down batsman", and T.S. Fernando had every expectation that he would be the next appointee to the Supreme Court in December of that year upon the retirement of Justice H.A. de Silva. However, with no prior consultation with anyone else, he agreed to the proposition. When he left for the United States in October 1953, H.N.G. Fernando was appointed to act as Solicitor General.

When T.S. Fernando returned in December, a new Prime Minister was in office (Sir John Kotelawela having succeeded Dudley Senanayake who had resigned on grounds of ill-health), and a new Minister of Justice as well (E.B. Wikramanayake QC having replaced Sir Lalitha Rajapakse). The Government had decided not to fill the Supreme Court vacancy for the time being, and when it eventually did, it was M.C. Sansoni, District Judge of Colombo, who was appointed. H.N.G. Fernando moved out of the Solicitor General’s Chambers to be one of seven Commissioners of Assize distributed throughout the country.

It was only in May 1955 that H.N.G. Fernando was appointed a Puisne Justice, and received the traditional welcome from the Acting Attorney General T.S. Fernando at a ceremonial sitting of the Supreme Court. One year later, in May 1956, T.S. Fernando was appointed to the Supreme Court, with Justice E.F.N. Gratiaen succeeding him as Attorney General.

An attempted compromise

In August 1966, ahead of the impending retirement of Chief Justice Sansoni, J.R. Jayewardene, Minister of State in the Dudley Senanayake Government, visited his former classmate with whom he had co-edited the Royal College Magazine, 60-year old Justice T.S. Fernando, to inform him that the Prime Minister was willing to recommend him for appointment as Chief Justice if the 56-year old Justice H.N.G. Fernando was agreeable. It was an arrangement that would enable both to serve as Chief Justice before retirement.

He returned a few days later and said that he had spoken with Justice H.N.G. Fernando who was willing "to make way", but only if Justice T.S. Fernando would make that request to him personally. The latter’s reply was that the appointment of the Chief Justice was a matter for the Government and that, as a Judge, he did not propose to make any request of anyone in that regard. Again, fortuitously, it was Senior Puisne Justice T.S. Fernando who administered the oath of office to the new Chief Justice at his official residence.

An incorrect surmise

Gunasekara’s version of the concluding phase in this drama is not accurate. He states that "the public had to pay a very high price for the desire of the then UNP Government to appoint H.N.G. Fernando Chief Justice in preference to T.S. Fernando". That, he surmises, happened when I, as Permanent Secretary to the Ministry of Justice, "intent on redressing the undoubted injustice done to his uncle, T.S. Fernando, set about causing to be established the rather short lived Court of Appeal to replace the Privy Council as the final court of appeal and hence to become the apex court of the land". He adds: "needless to say, T.S. Fernando, who was then aged 64 or 65 and in retirement, was appointed the President of that Court and hence placed above the then Chief Justice H.N.G. Fernando."

Gunasekara concludes that "all the money spent on the establishment of that Court of Appeal as well as the time and energy expended on that became a totally unnecessary and avoidable waste of public funds and official time, all of which was expended purely to enable the uncle of the then Permanent Secretary of the Ministry of Justice, T.S. Fernando, a man of the greatest integrity and honour, to be appointed the Premier Judge of the land so as to correct a historic injustice."

The factual position

This version is inaccurate in several respects. First, in anticipation of the establishment of a Republic, it was necessary to terminate the right of appeal to the Queen (i.e. Judicial Committee of the Privy Council) and make arrangements for the hearing and disposal of about fifty appeals that were pending at the time in London. Second, it was the Cabinet that decided that the right to a second appeal that had existed since 1833 should continue. Third, it was Prime Minister Sirima Bandaranaike’s view (as, I am sure, it was everyone else’s as well) that the new Court should enjoy the confidence of all sections of the community. Fourth, the decision to invite T.S. Fernando to be the first President of that Court was made by the Prime Minister on her own initiative. Fifth, the 1972 Constitution recognized the new Court of Appeal as being the apex court of the Republic. Finally, contrary to what Gunasekara imagines, the expenditure incurred in the establishment of the Court of Appeal was minimal. The Court was located in Hulftsdorp in an existing appellate courtroom, and the staff was drawn from the existing cadre of the Supreme Court Registry. In fact, there was one significant saving, in that foreign exchange did not have to be released thereafter to pay the fees of counsel from the English Bar who were retained to appear in appeals from Sri Lanka.

Correcting "a historical injustice"

In 1971, three years after his retirement from the Supreme Court, T.S. Fernando had no particular interest in returning to Hulftsdorp. The "historic injustice" was a matter of the past. On the invitation of the previous UNP Government, he had ventured into the banking sector and been appointed the first Chairman of the Commercial Bank. He was the President of the International Commission of Jurists (an honorary position), and was seriously considering a request from its executive committee to accept the office of Secretary-General in succession to Sean McBride, the legendary Irish freedom fighter. In fact, relocating to Geneva was very much in his mind. However, he felt that an invitation of that nature from a Prime Minister, at a momentous time in the country’s history, was not one that could be lightly treated.

Obviously, Chief Justice H.N.G. Fernando was disappointed, at least initially, at not being appointed to head the new apex court. He gave expression to that disappointment when (after having first agreed to do so) he declined to accompany T.S. Fernando to Queen’s House where the oath of office was administered by the Governor-General. However, two days later, he was in a different frame of mind. At a ceremony in the Colombo Law Library where he unveiled the bust of the late H.V. Perera QC, the Chief Justice referred to the new appointment:

"By reason of his distinguished career both at the Bar and on the Bench, by reason of his being a devoted exponent of the principles of the Rule of Law, and by reason of the high esteem he is held, he is eminently qualified for his appointment. We all wish to congratulate him and we welcome his return to Hulftsdorp."

Vindication of Prime Minister’s choice

Perhaps the best tribute to the Prime Minister’s judgment was expressed in an editorial comment in the then pro-Opposition Ceylon Daily News, several of whose directors had only recently been found by a Commission of Inquiry headed by T.S. Fernando to have contravened the provisions of the exchange control and inland revenue laws of the country:

"The independence of the Judiciary is not merely institutional. It is also personal. The calibre of judges, the integrity of the individual, is as vital as the guaranteed independence of the institution. It is in this perspective that we welcome the appointment of Mr. T.S. Fernando QC as the first President of Ceylon’s Court of Appeal. While congratulating him on this, the crowning glory of his judicial career, we warmly commend the Prime Minister for her impeccable choice of this internationally known jurist, scholar and man of high integrity and accept it as a token of the Government’s respect for the vital principle of an independent judiciary."

Adoption of the "one appeal" principle

It was the advent of a new Minister of Justice, Felix R Dias Bandaranaike, that led to the establishment of the principle of "one appeal only" (and the consequent abolition of the Court of Appeal) and the incorporation of that principle in the Administration of Justice Law of 1974. I disagreed with that principle. I also disagreed with the increase of the cadre of the new Supreme Court from eleven to twenty-one for the same reason that Gunasekara condemns the more recent practice of promoting judges en masse. In 1974, the sudden expansion of the Supreme Court necessarily meant the appointment of several persons who, in normal circumstances, would not have been chosen. The pool of selection became the Court itself. The deterioration in standards was inevitable. Indeed, breadth of vision, versatility, and a commitment to the Rule of Law, which had been the hallmarks of a Supreme Court Judge and which distinguished him from the judicial officer of a subordinate court, and gave him the confidence to act without fear even in highly contentious matters to which the State was a party, became less discernible in the reconstituted 1974 Supreme Court.

Landmark event

It would be simplistic, as S.L. Gunasekara appears to have done, to attribute the abolition of appeals to the Privy Council and the creation of our own Court of Final Appeal to the desire of a nephew to "correct a historic injustice" done to his uncle. But the wheels of government at that time were not driven in that way. Of course, it was a matter of pride and satisfaction to me that this happened under my watch. But that was only a by-product of a far more significant and landmark event in the judicial history of this country.

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