It was a pleasure and a privilege for anyone to have known Desmond Peter Malcolm Fernando MA (Oxon), PC, Barrister-at Law and Advocate, as closely as I did, both here and abroad for nearly 40 long years.
The last time we were abroad together was in Malaysia, where he, Marzuki Darusman (the Chairman of the controversial UN Panel of Experts), an Australian QC and I were International Observers at the Appeal hearing of Dato' Anwar Ibrahim (former Deputy PM of Malaysia) against his conviction for sodomy. A pleasure and privilege it was, not only because of the eminence Desmond had reached, but also due to all that one could learn from him, about our noble profession (whether it be local, regional or global), its history and workings. As there is simply no one here, in my view, as knowledgeable as he was on such matters, it would not be easy to fill the vacuum created by his demise.
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We belonged to different generations and backgrounds; he, to an affluent urban family, where he did not have to earn his living; I, to a modest outstation one, where one necessarily had to do so. We had our share of agreements and disagreements, but continued to be friends all these years, invariably meeting him with my wife Shirani, every 31st October, his birthday.
Exasperated by the non-availability of wing collars and bands in the market, I was to make a complaint to him. That was how I first met him in early 1972. He was the (last) Secretary of the then Bar Council of Ceylon, and I, a helpless young advocate apprentice. In his characteristic way, he tried to pacify me by offering a set of his own, which I declined. That was to be the beginning of a long association.
I last met him recently at his bedside at Colombo House. He did not forget to congratulate me on my recent appointment, for which he (and the late Eardley Perera PC) first asked me to apply, more than one and a half decades ago.
As there were only a handful of active advocates at the Bar then, compared to the large numbers today, it was not unusual for a junior like me to have been able to know a senior like him. He was always approachable, unassuming and friendly and, was therefore one of the few rare seniors we could communicate with freely.
We became almost family friends. Though I had the pleasure of knowing his late mother Daisybelle and his only brother, late Trevor, his father the late P.O. Fernando, a top civil servant during the colonial period, had passed away long before I met Desmond.
Like most of his relatives, his secondary education was at St. Joseph's College, Colombo after which he entered the prestigious Oxford University where he obtained an MA. He was called to the Bar from Lincoln's Inn, of which he was later appointed a Bencher.
Desmond had several unique distinctions -- having been the last Secretary of the Bar Council of Ceylon and the first Secretary of the newly-formed unified Bar Association of Sri Lanka (BASL). He was the first and the only Sri Lankan and the second Asian to hold the distinguished office of President of the International Bar Association (IBA). Before this appointment, he served as the IBA’s Vice President, Secretary General and Deputy Secretary General (the last being one which I too was privileged to hold). He also served as Vice President of the International Commission of Jurists (ICJ), and the only member to be elected thrice as President BASL, among others.
Unpredictability, in my view, was one of his personal traits. Of course, he would always justify his position -- genuinely, sometimes even convincingly. One example was when he, after having held the office of Secretary BASL, volunteered to serve as secretary of one of its branches, albeit the largest, Colombo Law Society. Similarly, it was after having led the World Bar that he plunged into the fray for the third time as a candidate for the local presidency. As I (and probably many others) advised him, in doing so, he had nothing to gain but everything to lose. He did win the election vindicating his stand, but did not go for the next term, on advice from many.
He would be long remembered by the grateful for the yeoman services he rendered as president of the BASL during the 1989-1991 period of turmoil. He managed to handle the threats faced by BASL members, some of whom were abducted, tortured and killed, through his inimitable quiet diplomacy. No one would have been able to negotiate as skilfully as he did with the different parties to the conflict.
I am aware of a couple of incidents where his good work of saving lives and securing the freedom of members was hampered, by an over-enthusiastic colleague, who even had no qualms about taking credit for Desmond's good work and those of the previous office bearers in cases such as the abduction and murder of Wijedasa Liyanarachchi, the first lawyer in history to die in the "custody of the law". Desmond was too much of a gentleman to even attempt to put the record straight.
He and Suriya were the champions of the underdog, whether the victims were from the North or the South. This might not have appealed to the conservative majority in the Bar. It was to their Chambers and to their home that many with problems gathered. I am personally aware of at least a dozen members who were being hunted, who were found a safe haven in the West, through their good offices. Desmond was the face, while Suriya worked behind the scenes. She took over the burdens of the Civil Rights Movement from him. My own initiation into the BASL, of which I became a founder member, was solely due to my association with Desmond. He took me to the Chambers of Nimal Senanayake, where a representative body of the former Incorporated Law Society and the Bar Council were engaged in drafting the proposed BASL Constitution.
It was therefore natural that Desmond was a candidate at the first election of the BASL in 1975. Despite belonging to the minority (of Advocates), outnumbered many times by the former Proctors, he managed to be elected, over two active members of the former Law Society, along with the late H.W. Jayawardane QC, the first president. Though they belonged to different political orientations, they worked well together, and in harmony, setting up the foundations of the BASL, (which is now in its 35th year) from a small room in the former Colombo Law Library.
He was later elected president in 1989 defeating the formidable and popular Jayantha de Z. Gunasekera, an islandwide criminal practitioner. Desmond, on the contrary, was confined to Colombo and that too, to the civil, labour and appellate Courts, whenever he found the time among his many other commitments.
He did not forget (except during his brief unpredictable escapades) the importance of those two elections, and the chance he unexpectedly received to represent the BASL at the IBA in the absence of the late H.L. de Silva. Without this opportunity, he would have never become the president of IBA. He openly acknowledged this at a felicitation dinner held for him by the Kochi Bar Association in Japan on his appointment as President of IBA. It is at this ceremony that he presented a pair of silver cufflinks of the IBA to the president of the Asian Legal Research Institute (ALRI), Japan and a neck tie to me. I could not help but say in reply "All Desmond's gifts have been around my neck".
During these years, not only did we travel together to IBA meetings around the world, but also spent some interesting times at ALRI in Japan, thrice for over three months. He first came there when he was invited to the East-West Centre in Honululu and, spent about a week.
I was able to have him invited again for a couple of months to advise and assist me, when the first Asian Lawyers' Conference was being organised in 1981. Our hard work was reciprocated with him being elected a Vice President and I, the Secretary- General, of the new All Asia Bar Association (AABA).
Speaking of his unpredictability, as many would know, though I played some role in his two election campaigns, Desmond surprised me by wanting to "think about" my request for him to sign my nomination for BASL presidency in 1999. He did so once again, by asking me to sign his, when he contested for the third time. I had to decline, not as a "tit for tat", but because his opponent Ikram Mohamed PC had signed mine as a proposer, while he was "thinking about" it.
Probably due to the way he had been brought up, he could not believe that there could be anyone who is not a gentleman. Some made good use of this failing, (if one could call it so) of his. He was one with whom anyone could discuss even the most controversial matter, objectively. Sometimes his objectivity was misunderstood. A very good sense of humour was another enjoyable quality. On occasions he disappointed me, I could tell him "I do not need enemies, when I have friends like you".
Desmond had no time to look after the property he inherited, which Trevor did. His Chamber was always a hub of intellectual activity. He therefore had to phone to ask me before one Sinhala New Year, "How do I get to Akurawa Estate?" Many may find it difficult to believe. But, that was Desmond.
We were all surprised to read in the media, his open praise in Oslo, of President Premadasa's non-interference with the judiciary. Knowing of my support to Desmond, many complained to me about it. I knew that he would have had a good reason to do so. He did convince me of why he did it.
With Desmond's passing away, we have lost one of the most active members of the Bar, a distinguished international legal luminary, a fighter for others’ rights and, above all, a thorough gentleman, now a rare species, I, a good friend, mentor and critic.
He was a devout Catholic. Now that he has gone back to his Creator, "may Desmond rest in peace, until we meet again".
Upali A. Gooneratne |
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