"A Historic Injustice"

A Response to Nihal Jayawickreme’s article in the Sunday Island of 15.1.2012


By S.L. Gunasekara

I read with interest, Nihal Jayawickreme’s article about the statements in my book Lore of the Law and Other Memories about the historic injustice that was perpetrated on T S Fernando and the rectification of that injustice which brought T S Fernando to the pinnacle of the judiciary. This was not least because Jayawickreme was brought up in his uncle T S Fernando’s house and because he was the political appointee in the post of Permanent Secretary to the Ministry of Justice at the time of the creation of the short lived Court of Appeal of which T S Fernando was appointed President and hence the ranking member of the judiciary.

Jayawickreme does not dispute the facts:-

a) that in 1953 H.N.G. Fernando was the Legal Draftsman and T.S. Fernando the Solicitor General;

b) that as Solicitor General T.S. Fernando was the "one down batsman" for appointment as a Judge of the Supreme Court and indeed Jayawickreme says that T S Fernando expected to be appointed to the next vacancy in that Court which was expected to arise in December of that year;

c) that as Legal Draftsman H.N.G. Fernando "never had a look in" as far as being appointed a Judge of that Court was concerned;

d) that T S Fernando went abroad and H.N.G. Fernando was appointed to act in T S Fernando’s post as Solicitor General;

e) that thereafter H.N.G. Fernando was appointed a Judge of the Supreme Court before T.S. Fernando and finally Chief Justice which I have contended [and is not denied by Jayawickreme] was a post to which T.S. Fernando should otherwise have been appointed; and,

f) that finally the Court of Appeal was created as the Apex Court of the land while Jayawickreme was Permanent Secretary and T S Fernando who was about 66 and hence past the retiring age for a Judge of the Supreme Court at the time which was 63 appointed the President of that Court and hence the ranking judge of the land superceding the then Chief Justice H.N.G. Fernando.

Jayawickreme first joins issue with my contention that the appointment of H.N.G. Fernando as a Judge of the Supreme Court ahead of T.S. Fernando was politically motivated in that the then UNP Government had a preference for H.N.G. Fernando over T.S. Fernando and, after a cryptic reference to the fact that H.N.G. Fernando was a "regular" at the Orient Club and "probably had powerful friends in Government", contends that it "appeared at the time to have been have been more personally inspired than politically motivated". The starting point of H.N.G. Fernando’s accession to the Bench having been his appointment to act as Solicitor General, Jayawickreme recounts an alleged happening in T.S. Fernando’s house in about July 1953 when H N G Fernando allegedly came there and told T.S. Fernando that while the Government wanted to appoint him to the next vacancy in the Supreme Court [i.e. the vacancy which T.S. Fernando expected to fill] but that the then Attorney General had "ruled" that H N G Fernando as Legal Draftsman was not eligible for appointment since Judges of the Supreme Court should only be appointed from the judiciary or the official or unofficial bar, and requested him to take leave for a few months to enable him to act as Solicitor General and qualify for appointment as a Judge of the Supreme Court. Jayawickreme then says that H.N.G. Fernando proceeded to offer T S Fernando an `inducement’ to comply with his request in that he had "proceeded to explain that he had already spoken to 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’ ", and that it had been the wish of his father V.M. Fernando that he too should be a Judge of the Supreme Court.

In brief, what Jayawickreme says is that H.N.G. Fernando came to T.S. Fernando’s house in search of the very job to which T.S. Fernando aspired, and requested him to take leave so that H.N.G. Fernando may act for him in his then current job to qualify him for that job for which they both aspired and even offered him a `bribe’ which he (H N G Fernando) had procured from a bureaucrat of a foreign country in the form of a three month holiday in that country, and that T.S. Fernando accepted that `bribe’ which resulted in H N G Fernando being appointed to act for T.S. Fernando and thereafter a Judge of the Supreme Court in May 1955 one year before T.S. Fernando.

I for one, have far, far too much regard and respect for the memory of both H.N.G. Fernando and Jayawickreme’s uncle T.S. Fernando to believe, on the ipse dixit of Jayawickreme, that either of them would have acted in the wholly cheap and dishonourable manner in which Jayawickreme claims they acted. Hence my belief that T.S. Fernando being superceded by H.N.G. Fernando was politically motivated remains unchanged.

As for what Jayawickreme claims were the alleged ambitions of V.M. Fernando for his son H.N.G. Fernando which H.N.G. Fernando is alleged to have conveyed to T.S. Fernando, they are, to my mind, wholly irrelevant to the issue, and in any event, if that be so, it is difficult to comprehend why H.N.G. Fernando who had initially been an acting Crown Counsel, albeit briefly, chose to join the `dead end’ in the form of the Legal Draftsman’s Department.

Jayawickreme does not end his litany of accusations against H.N.G. Fernando there. He proceeds to say that in August 1966 JR Jayewardene visited T.S. Fernando who had been his classmate at Royal College and told him that the then Prime Minister Dudley Senanayake was willing to appoint T.S. Fernando Chief Justice on the retirement of the then Chief Justice Sansoni so that both he and H.N.G. Fernando [H N G Fernando having been four years younger than T.S. Fernando] could serve as chief Justice provided H.N.G. Fernando was agreeable. While Jayawickreme does not reveal what, according to him was T.S. Fernando’s response to Jayewardene, he goes on to say that JR Jayewardene returned a few days later to say that H.N.G. Fernando was willing to make way "but only if Justice T S Fernando would make that request to him personally" and that T S Fernando replied saying 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 any one in that regard".

This narrative of Jayawickreme is to my mind, scarcely credible and gives rise to several questions that admit of no rational or plausible answer.

Firstly, if JR Jayewardene’s concern for his former class-mate T.S. Fernando was such as to cause him to visit T.S. Fernando twice in 1966 [the second time as a `messenger’] about the appointment of the successor to Chief Justice Sansoni which would never have been necessary if the `one down batsman’ had been appointed a Judge of the Supreme Court before the Legal Draftsman from his `dead end’ post, albeit after he had acted for that `one down batsman’ and thereafter been appointed Commissioner of Assize and an Acting Judge, how is it that Jayewardene did not, evidently, think of his erstwhile classmate or do anything to help him when his right to being Chief Justice was undermined 11 years earlier while he [JR Jayewardene] was a powerful Cabinet Minister holding the most important portfolio of `Agriculture and Food’.

Secondly, how was H.N.G. Fernando’s consent necessary for the appointment of T S Fernando as Chief Justice when that appointment was one that the then Government had to make at its sole discretion.

Thirdly, is it even scarcely credible that a man of the caliber of H.N.G. Fernando would have stooped so low as to play a game of `one upmanship’ in the manner of a common or garden politician by insisting on "his friend, colleague and neighbour" T S Fernando making a request of him personally in respect of an appointment which was not his to make.

Fourthly, having regard to the principled stand which Jayawickreme says T.S. Fernando took on JR Jayewardene’s second alleged visit, how is it that T.S. Fernando did not take a similarly principled stand when, according to Jayawickreme, H.N.G. Fernando offered T.S. Fernando a `bribe’ from a foreign country to take leave.

Jayawickreme next joins issue with me in respect of the establishment of the extremely short-lived Court of Appeal of which T.S. Fernando was appointed President which I contended was engineered by Jayawickreme to rectify the historic injustice done to his uncle T S Fernando by saying that my contention was "simplistic", in that he concludes his article saying "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 Appeal to the desire of a nephew to `correct a historic injustice’ done to his uncle".

There was nothing whatever that was "simplistic" about my assertion, and I did not in any way attribute the abolition of appeals to the bunch of foreigners known as the Privy Council to the desire of Jayawickreme to correct that "historic injustice". The abolition of appeals to the Privy Council was something that had to happen with Sri Lanka becoming a Republic. That would have necessitated the creation of a Court of Appeal to be our second Court of Appeal if and only if the Government of the day had determined as a matter of policy that there should continue to be the right of a second appeal. The fact that there had, evidently not been such a determination is evidenced by the passage of the Administration of Justice Law No. 44 of 1973 [certified on the 14th November 1973] which provided for one appeal only and abolished the Court of Appeal with effect from the 1st January 1974. The Court of Appeal, it must be remembered had its inaugural sitting with much fuss and fanfare less than two years previously on the 9th March 1973!!! Further the 50 or so appeals that Jayawickreme says were then pending before the Privy Council could well have been transferred to the Supreme Court to be heard by benches of five or more judges thereof. Such a transfer would have saved the foreign exchange which was incurred on appeals to the Privy Council without also incurring the utterly unnecessary wastage of public funds and the time and efforts of public servants by the creation of a Court of Appeal which had an existence of less than two years and was probably the shortest lived `Apex Court’ in any part of the world. It must be observed that Appeals to the Court of Appeal which were pending at the time of the abolition thereof were transferred to the Supreme Court in terms of section 53(1) of the Administration of Justice Law No, 44 of 1973 and heard by benches of five or more Judges of the Supreme Court.

If the policy of the then Government was that the right to a second appeal should remain, it could not possibly have provided for only a single appeal by the Administration of Justice Law which it enacted about nine months after the establishment of the Court of Appeal. Jayawickreme, let us not forget was not a Permanent Secretary appointed from the public service, but a political appointee thereto in the same way in which the UNP’s twice defeated candidate for Kotte, Anandatissa de Alwis was appointed Permanent Secretary to the Ministry of State in 1965. Jayawickreme was hence very much a part and parcel of the political apparatus that constituted the all powerful Government from 1970 to 1977. He would thus have been privy to the Government’s plans and intentions.

Jayawickreme says that he disagreed with the policy of having only a single appeal which was introduced by the "new Minister" Felix R. Dias Bandaranaike as well as to doubling the number of Judges of the Supreme Court. If so, it would follow that that Minister [who took office on the 20th January 1972] went ahead with the implementation of those policies, disregarding the views of the political appointee Jayawickreme on both such vitally important matters, and that despite that rejection of his views, Jayawickreme did not resign in protest but remained in office to the bitter end.

We must also note that a previous statute pertaining to the Administration of Justice, namely, the Criminal Justice Commissions Act No 14 of 1972 to which assent was given on the 18th April 1972 was entirely at odds with Jayawickreme’s claim to an abiding belief in the need for a second appeal. That Act provided for the appointment of Commissions consisting of not more than five Judges of the Supreme Court [i.e. two, three, four or five Judges] to hear and determine certain criminal cases and were empowered to pass even sentences of life imprisonment after conviction in trials/inquiries in which the Commissions were empowered to admit and act upon even evidence that is inadmissible under the Evidence Ordinance. It also provided in section 25 that there should not be even one appeal, application for revision or writ or any other challenge to any finding or sentence of such a Commission. However, we did not, to the best of my recollection, find Jayawickreme protesting or resigning from the post to which he was a political appointee.

All this clearly militates against the acceptance of Jayawickreme’s contentions about the background to the creation of that short lived Court of Appeal and the appointment of his uncle T.S. Fernando to the post of President thereof. These events lead to but one irresistible inference, namely, that that Court of Appeal [which did not exist for even two years] was created purely to oblige Jayawickreme, the political appointee to the post of Permanent Secretary to the Ministry of Justice by correcting a historic in justice done to the uncle T.S. Fernando.

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