Focus on Rights

One might say that obituaries are meant for the obituary pages. But Suranjith Hewamanna was not only a dear and close friend whose loss will be personally felt in the most profound sense. Neither was he only a gentle and deeply honourable man or indeed the most compassionate of lawyers who responded to a desperately indigent client as much as he would respond to a relative in need.

Rather, his worth went beyond all these relative conventionalities. Quite simply, he was a man who refused to compromise (even when the odds were overwhelmingly against him) when attacks were made on Sri Lanka's legal system, the law and the very Constitution.

This quality could not have been tested more severely in the past several years as the legal and constitutional process was subjected to trials of endurance that sapped the energies of even the passionately committed. For me, the ability that he possessed to engage the system without a hint of personal motivation, personal glory or, (as the case may be), personal likes and dislikes, was his peculiar strength.

So too was his ability to strip away the façade and unerringly expose the rot underneath. Others may have engaged in persuasive advocacy as to why stronger voices were not forthcoming from the legal profession when the system itself was being undermined or why those had had once been in the forefront of the struggle had midway changed allegiance. But his judgement, (coming as it did from an otherwise most gentle soul), was uncompromisingly merciless though never personal. When honest anger soon became a quality politely shrugged away by most, he never balked at expressing his own fury at unprecedented happenings in the halls of justice. Throughout, he grieved for the system and for a poignantly lost faith in the law.

Perhaps it was that inner and stubbornly idealistic belief in the law and the judges being the last resort for the tyrannized that sustained his personal fight. He was not prone to easy intellectual rationalisation regarding notions such as the independence of the judiciary. Instead what he possessed was a fundamentally ingrained sense of justice which gave way to viscerally outraged reactions when the judicial system was subverted. I recall one instance when, at a difficult time, I asked him whether he ever regretted embarking on what seemed to be a hopeless struggle. His answer was devastatingly short; "I could not have done nothing. I do not regret anything."

This ingrained belief in the judiciary was one reason why he leant his name as petitioner during the early 1980's in a case that thereafter became a cause celebre in the law relating to privileges of parliament. The case related to the publication in the Daily News of a resolution placed in the Order Paper of Parliament concerning two judges. The resolution was seen as a political attack on the judges at that point of time.

The newspaper publication was brought before the Supreme Court (Hewamanne v Manik de Silva, 1983, 1 SriLR, 1) on the basis that it amounted to contempt of court as it defamed judges. The editor took up the position that the publication was a fair and accurate report of the order paper and that it did not amount to contempt or defamation. However, writing an exhaustive majority judgement, Wanasundera J. held that contempt had been evidenced. Thereafter, Parliament went so far as to amend the Parliamentary Powers and Privileges Act, No 21 of 1953 (as amended) in order to confer absolute immunity on publications of Parliament and bona fide reports of the same, (Amendment Act, No 25 of 1984).

Ironically, what was seen at that time as a necessary defence of judicial authority became a double edged sword in the years to come when contempt of court itself became a problem. The majority judgement, in Hewamanne's case had asserted extremely conservative principles relating to contempt. An undoubtedly unfortunate comparison was drawn between what should be appropriate for this country as against Western jurisdictions where the degree of latitude permitted to freedom of speech was opined to be greater. The principles asserted in this case formed a body of corpus that thereafter remained to the detriment of those urging liberalisation of the laws of contempt.

The change from perceiving the judiciary as an institution to be protected from all attacks to the sober realisation that there is no avenue for redress when the judiciary itself becomes oppressive, came painfully for Suranjith Hewamanne. At times, he was bitter enough to wonder as to whether he should have, in fact, appeared as the petitioner in that case. Poignantly, during the past several years he became one of the foremost critics of the arbitrary use of contempt powers. Particularly where ordinary citizens were concerned, his reactions were strong. His enthusiastic involvement in the Tony Fernando case where a lay litigant had been imprisoned to one year hard labour for talking loudly in the Supreme Court and filing applications, stemmed from this commitment.

In all that he did, he acted totally without any fear of the consequences. Not only was he someone who dared to hit his head against the stone of the political establishment but he also veritably enjoyed doing so and declared his enjoyment in no uncertain terms.

His activism did not stem from funded projects or comfortable conference halls. Indeed he inhabited these, when he was compelled to, only with considerable reluctance. His activism sprang from his own personal feelings of outrage and nothing more. His outrage will distinguish him from the other far lesser mortals who have now made it their business to thrive on the quick strangulation of what was once, one of the most venerated institutions of the judiciary in South Asia.

I do not mourn his passing away. He was too unique to be mourned in that manner. Instead, I am only glad that I was able to know one honestly angry man at a time when such anger was a rare commodity in the legal profession. The memories that we treasure of him will be numerous. Above all, he will be remembered as one who, (in classical Dylan Thomas style), raged with all his strength against the calamitous dying of the light.