A Response To Nihal Jayawickreme

A Historic Injustice


[Sunday Island 5.2.12]

S.L. Gunasekara

In his first article published in the Sunday Island of 14.1.12 Jayawickreme says that in 1953 the then Legal Draftsman HNG Fernando requested TS Fernando to take leave for a few months to enable him [HNG Fernando] to act in TS Fernando’s office [Solicitor General- the holder of which was regarded as the `one down batsman’ for appointment to the Supreme Court Bench] because the then Government [of the UNP] wished to appoint him [HNG Fernando] to the next vacancy on the Supreme Court Bench [which Jayawickreme admits TS Fernando expected to fill] because the then Attorney General had said that the Legal Draftsman was not eligible for appointment.

In brief, what Jayawickreme said was that HNG Fernando wanted TS Fernando to take leave so that he may act in TS Fernando’s post to make himself eligible for appointment to the Supreme Court Bench which was a job to which both aspired and to which the then Government wanted to appoint HNG Fernando and not the `one down batsman’ TS Fernando’!!!

Having uttered this bizarre tale, Jayawickreme proceeded to say:-

Before the request could begin to sound preposterous HNG 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 TS Fernando to visit the United States for three months `to study the American legal and judicial systems’ [emphasis added]

and that TS Fernando "with no prior consultation with anyone else…. Agreed to the proposition". Thereafter, he says, HNG Fernando was appointed to act as Solicitor General when TS Fernando left for the United States.

To my mind this was a clear and unequivocal accusation of HNG Fernando having offered TS Fernando a bribe and TS Fernando having accepted it. However, Jayawickreme denies that it was so!!

Jayawickreme’s next accusation against HNG Fernando was to say that J R Jayewardene having told TS Fernando that the Government was willing to appoint TS Fernando [who was older than HNG Fernando] Chief Justice in succession to the retiring Chief Justice MC Sansoni so that both [TS & HNG Fernando] could hold that office in succession [in the same way in which the mayoralty/chairmanship of a local authority is sometimes `shared’; by rival contenders for such post as a `political settlement’] told him thereafter after having allegedly spoken to HNG Fernando that he [HNG Fernando] "was willing to make way but only if Justice TS Fernando would make that request to him personally" [emphasis added]

I called and continue to call this an "accusation" because it imputes to HNG Fernando cheap and equally disgraceful conduct utterly unbecoming of a gentleman which is akin to the type of conduct which one could expect of some cheap political functionary.

However, Jayawickreme has had the temerity to say "I have made no accusation whatever against HNG Fernando" and to thereafter say with an unbelievable degree of sanctimoniousness, how much he respected HNG Fernando!!!

I cannot accept any of this. If allegations of bribery and of other outrageously cheap conduct do not constitute "accusations" what do???

Jayawickreme proceeds to expand on his contention that there was no offer of a `bribe’ or `inducement’ in respect of the trip to the United States by saying:-

"In fact the invitation to visit the United States had initially been extended to Justice Gratiaen ………….But Gratiaen had been willing to let it be offered to TS Fernando………."

If that was so, why was the offer not made directly to TS Fernando by the United States Embassy? Where does HNG Fernando come in?? Why was it necessary for HNG Fernando to speak to the United States Ambassador on the subject and get an assurance from him??? Why did Jayawickreme preface his narrative of this supposed incident with the words "Before the request could begin to sound preposterous HNG Fernando proceeded to explain……." ????

Perhaps realizing the hopelessly incredible nature of his tale, Jayawickreme falls back on the hackneyed cliché that "Truth is sometimes stranger than fiction".

Having known TS Fernando and HNG Fernando for many years, I held them and continue to hold their memories in the very highest regard. No amount of clichés; protestations or narratives from alleged personal knowledge uttered by Jayawickreme will ever make me think less of either of these two great men on the mere word of Jayawickreme. Hence what Jayawickreme describes as being "an unnecessarily argumentative and aggressive rejoinder".

Jayawickreme commences his article by observing that I do not say why he would fabricate such tales. The short answer to this is that it was because I haven’t the foggiest notion of why Jayawickreme fabricated these tales which defame the memories of two great men. I neither know nor care why Jayawickreme should do such a thing, and have neither the time nor the inclination to probe the recesses of Jayawickreme’s mind even if I had the ability to do so. However, after well nigh 44 years of being in a profession which entails sifting truth from falsehood almost daily, I have little difficulty in identifying and distinguishing between the incredible and the falsehood from the credible and the truth, the cliché that "Truth is sometimes stranger than fiction" notwithstanding. Jayawickreme’s tale was not, to me, worthy of credit and nothing he has said so far gives me even a semblance of a reason to change that view.

There is just one matter on which Jayawickreme was correct and I wrong. The inaugural sitting of the Court of Appeal was on the 9th March 1972 and not 1973 as mistakenly stated by me. Thus, that Court of Appeal which was abolished with effect from the 1st January 1974 functioned as the `Apex Court’ of the land for just 1 year 9 months and 22 days and accordingly existed for less than two years and was "probably the shortest lived `Apex Court’ in any part of the world" as stated in my article. Thus, nothing really turns on that mistake.

Jayawickreme ends his article with what three astounding propositions, namely:-

a) that all Permanent Secretaries under the 1946 and 1972 Constitutions [including my father (who was Permanent Secretary to the Ministry of Justice from 1948-9 after about 17 years in the Attorney General’s Department and about one year as a Commissioner of Assize] were:-

"political appointees in the sense that they were appointed by the Governor General [later the President] on the recommendation of the Prime Minister"!! [emphasis added]

He goes on to say that there were several persons from outside the Public Service who were appointed Permanent Secretaries with him in about 1970 and that he was never a member of any political party.

This is manifestly ridiculous. As any person of sound mind and some knowledge of public affairs knows, a `political appointee’ is one who comes into office with a regime and goes out with it unlike the regular public servant who remains in office whatever the change in regime. The facts that Jayawickreme was not a member of any political party and/or that several others from outside the public service were appointed at about the same time as he, are wholly irrelevant to the issue. Finally, if there was any truth in Jayawickreme’s contention, it must follow that all Judges of the short lived Court of Appeal and the Supreme Court, the Attorney General and the Service Commanders from 1946 up to 1978 were `political appointees’ because all of them were appointed "by the Governor General [later the President] on the recommendation of the Prime Minister"

Despite there being occasions when "truth is stranger than fiction" can anybody believe this nonsensical proposition??

b) that I asked "why (he) did not resign in protest whenever (he) disagreed".

I never posed such a ridiculous question. It was never my position that Jayawickreme should have resigned because of any disagreement even on some relatively inconsequential matter. The questions I posed were how Jayawickreme refrained from resigning on a purported difference on a matter of principle when he, a `political appointee’ and hence a member of the 1970-77 regime, who claims to have a deep and abiding belief in the right to a second appeal, could have remained in office notwithstanding the enactment of the Criminal Justice Commissions Act No. 14 of 1972 which empowered a Commission comprised of between two to five Judges of the Supreme Court to impose even a sentence of life imprisonment on an accused convicted at a trial at which evidence which is inadmissible in any Court could be led, and specifically deprived the accused of the right to even a single appeal or writ application seeking a review of such conviction and/or sentence; or when the then Government abolished the right to a second appeal from 1.1.74 by the Administration of Justice Law; and,

c) that my contention that the short lived Court of Appeal was established purely to oblige the `political appointee’ Jayawickreme by correcting a historic injustice to his uncle TS Fernando "is so bizarre that it does not warrant a response from" him.

There was nothing whatever "bizarre" about my said contention. The circumstance that that `political appointee’ Jayawickreme was a `favourite son’ of that regime is borne out by the fact that. It even appointed him Acting Attorney General and hence the `superior’ of legal luminaries such as VSA Pullenayagam, AC [Bunty] de Zoysa and HL de Silva. If that regime was prepared to go to that extent to `oblige’ or `favour’ that `political appointee’ Jayawickreme, is it not more than likely that they would have created an unprecedentedly short-lived `Apex Court’ to oblige that self same `political appointee’ Jayawickreme???

This correspondence is now closed

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