In a letter that is known only to a select few, Justice Mark Fernando who passed away this week, (writing to Presidents' Counsel Nehru Goonetilleke on October 21, 2003), explained precisely as to why he was prematurely retiring from judicial office at that time.
His letter was written in acknowledgment of a spontaneously generated signature campaign by lawyers, legal academics, professionals, activists and religious leaders, to persuade him to stay on in office. In reply, Justice Fernando pointed out that his priority had been, whilst in judicial office, to mould the law in order to protect the ordinary person against the abuse of State power. He observed that it was a source of much satisfaction that the expectations of the public as well as official attitudes had changed in this regard. However, his concern was that, despite the knowledge and experience accumulated during this period, he had experienced a sharp decline in the opportunities for service, as a Judge of the Supreme Court and as such, felt that he could better serve the country from outside.
The Bench and the Executive
The wider context in which this decision was taken was reflected in the public petitions. While one set of petitions expressed appreciation at his signal contributions to jurisprudence and urged him to reconsider, the second set of petitions requested the United National Front (UNF) government, then in an uneasy cohabitation arrangement with President Chandrika Kumaratunge, to appoint a Select Committee of Parliament to consider as to why Justice Fernando had been consistently shut out from Benches of the Court hearing important constitutional matters from 1999.
As anyone with a nodding acquaintance with this country's turbulent judicial history during the past decade would know, Justice Fernando's many decisions restraining abuse of executive powers had angered then President Chandrika Kumaratunge and her Ministers with the perhaps inevitable result that he was bypassed for promotion as Chief Justice in 1999, (despite being the seniormost judge on the Court) with Kumaratunge appointing then Attorney General Sarath Silva as Chief Justice. The Bar Association was noticeably silent at that time and indeed, maintained this canny if not utterly dishonest silence throughout the following years in relation to protecting the integrity of the Bench.
The public petitions to the UNF meanwhile were at first largely bypassed by the political leadership and then, (typically expediently) were used to launch an impeachment motion against the Chief Justice when it was thought that pending decisions upholding Kumaratunge's powers as Executive President were about to be delivered. Kumaratunge dissolved Parliament and this impeachment motion, (the second to be filed against the Chief Justice), lapsed along with it. The rest, as they say, is history.
Lessons to be learnt
What we should learn from this entire experience extends far beyond an individual judge who was by no means immune from making mistakes himself at times, rare though they were. This column does not intend to laud Justice Fernando's contributions to jurisprudence through skillfully crafted judgments upholding and expanding the Public Trust doctrine, the rights to freedom of expression, the right to vote, the right against non discrimination among others.
Suffice that this will anyway be accomplished in the law courts when his judgments are cited, in classrooms and in conference halls around the world. Yet, with his passing away, an era in the judicial history of this country which witnessed conscientious, measured and rights based opposition by the Court to the executive, has also passed.
Using the law to protect rights
At one essential level, the judicial persona itself is in issue. As scrupulously fair and courteous to both counsel (juniors in particular) and litigants as Justice Fernando was from the Bench, any kind of populism was anathema to him. Courting the glare of publicity for example, on television, was something that he disdained. Profoundly religious in private, yet, he did not parade his religious sentiments nor pontificate about them in public. These were not the qualities of this particular judge.
Then again, it must be said that true judicial greatness lies not in populist judgments that are flawed in legal reasoning or in judicial adventurism which causes the carefully structured branches of the executive, the legislature and the judiciary to collide, with the end result that the authority of the Court itself is lost though the masses may cheer. Judges, after all, draw their authority from moral force; they do not have armies under them to act at their command. Judicial adventurism could therefore be as equally damaging to the system as judicial subservience to politicians. Instead, the quality of a judge is measured by his or her strength in remaining aloof from the push and pull of political influence in using the law to protect rights of people. In all these respects, Justice Fernando eminently proved his worth during his years in judicial office.
Restraining the appointments process by the politicians
Finally, the most poignant tribute that people could pay to the memory of one of Sri Lanka's most erudite judges who acted according to his judicial conscience regardless of the consequences that this may bring him personally, would be to free the next appointment of the Chief Justice of Sri Lanka in June 2009, from political shackles. For this, the Constitutional Council needs to be in place and public discussion needs to be created around relevant considerations such as seniority and merit that should govern this process.
This is a duty owed by each and every one of us as citizens. |
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