Hulftsdorp Hill

26th September 1999

Individual liberty as Justice Mark Fernando saw it

By Mudliyar

Justice P.N.Bagawathie, retired Chief Justice of India, is one of the most eminent and highly respected Jurists in the world. He was one of the Jurists the South African Government consulted when it wanted a new Constitution, abolishing apartheid. Many states which are concerned about the preservation of democratic institutions, especially the independence of the judiciary, consult him on many vexed questions.

Justice Bagawathie was one of the key figures who motivated and brought about a judicial revolution in India. The Human Rights Committee of the Bar Association of Sri Lanka invited Justice Bagawathie for a seminar on “Independence and Dignity of the Judiciary”. After the Seminar Justice Bagawathie expressed his views about the supreme Court of Sri Lanka and especially about its most senior Judge, Justice Mark Fernando.

I contacted Justice Bagawathie over the telephone at the Tajmahal Hotel in Bombay and asked him whether he was prepared to go public on a statement made by him to a few participants privately. He was prepared to do so. I reproduce below his comments, which I believe are relevant to my article.

Q: You have said that the most senior Justice of the Supreme Court in Sri Lanka, Mark Fernando, is one of the best Judges in South Asia. How did you come to that conclusion?

A: I have formed the opinion that the senior most judge in the Supreme Court of Sri Lanka, Justice Mark Fernando, is one of the best judges of South Asia, by reading his judgements which have come to my notice.

Being one of the best Judges in South Asia means nothing to a government which is being accused of trying to muzzle the independent judiciary.

If there was some semblance of freedom enjoyed by the people of this country it came mainly from the judiciary. Justice Mark Fernando was one of those Judges who interpreted the constitution and expanded the fundamental rights jurisdiction to encompass the liberty of the subject. This approach was never liked by those who held the reins of power.

Justice Fernando delivered many a judgement upholding safeguards enshrined in the Constitution, especially Article 12(1) which proclaims that all persons are equal before the law, are entitled to the equal protection of the law and no citizen shall be discriminated against on the grounds of race, religion, language, cast, sex, political opinion, place of birth or any one of such grounds.

Justice Fernando’s grandfather was a Judge of the Supreme Court. His father was a former Chief Justice H.N.G. Fernando. Justice Mark Fernando and his family did not profess the religion of the majority, neither did he belong to the dominant caste.

With his fierce independence, he earned the wrath of those who wielded political power. On October 10, 1992 he delivered a judgement against Nalin Tilaka Herath, the UNP Mayoress of Nuwara Eliya in a case where Yukthiya editor Sunanda Deshapriya had complained that his fundamental rights of freedom of speech and expression were infringed. He alleged that the UNP Mayoress had forcibly taken away four bundles of Yuktiya newspapers, preventing them from reaching the intended readers.

Justice Fernando, after having evaluated the evidence with Justice Dheeraratne and Justice Wadugodapitiya, stated in his judgement: “The seizure directly prevented the publication of one issue of ‘Yuktiya’ not entirely but in a small part of Sri Lanka; and related to only 450 copies of the newspaper. I hold that the freedom of speech and expression, including publication, of the editor and proprietor, was thereby abridged even though not totally denied.

“In Ratnasara Thero Vs. Udugampola, the seizure of 20,000 pamphlets was held to be a serious violation of the freedom of speech and expression, including publication, which called for the award of substantial damages; Rs. 10,000/= was awarded, which was perhaps no more than the value of the pamphlets.

“While infringements of Articles 14(1)(a) may sometimes have to be viewed in isolation, they often do involve other factors, such as denial of equal treatment or political discrimination. Suppressing freedom of speech and expression including publication, whether by preventing a newspaper being published or otherwise, would be graver if motivated either by desire to benefit a rival or by political antagonism. The fact that the ‘Yuktiya’ was an anti-government newspaper, is therefore relevant”.

He stressed in his judgement that the right to support or to criticize governments and political parties, policies and programs was fundamental to the democratic way of life.

“The freedom of speech and expression is one which cannot be denied without violating those fundamental liberties of justice which lie at the base of all civil and political institutions and democracy requires that that dissent be not merely tolerated but that it be encouraged.”

According to Justice Fernando, the seizure of newspaers by the Mayoress amounted to an aggravate infringement. At that time Ranasinghe Premadasa was the President, and it was the time when the DUNF had been formed. Yuktiya was one of the newspapers which without any compunction opposed the regime of Premadasa. And the fact that one of the persons who supported the editor by tendering an affidavit was a supporter of the DUNF and that Tilaka Herath opposed Gamini Dissanayake at Nuwara Eliya, did not deter Justice Fernando, Justice Dheeraratne or Justice Wadugodapitiya, from making an order against her and ordering her to pay compensation in a sum of Rs. 100,000 and cost of Rs. 10,000.

To these judges, the political climate in the country, or who wielded power, did not matter. That is why the judiciary in this country is venerated by the ordinary people of this country.

Justice Fernando said further. “But it is clear that in seizing the ‘Yuktiya’, the 2nd respondent was not only influenced by the fact that it was an anti-Government newspaper, but also by the desire to promote the expression of views politically favoured by her; her threat to cancel the Lake House newspaper agency would undoubtedly have seemed very real … and therefore quite sufficient to inhibit lawful resistance – particularly as the stall itself belonged to the Municipal Council of which she was the Mayoress.

“These are circumstances which aggravate the infringement. It would not be right to assess compensation at a few thousand rupees, simply because the newspaper was sold for seven rupees a copy; that would only be the pecuniary loss caused by the violation of the petitioner’s rights of property under ordinary law. We are here concerned with the fundamental right, which not only transcends property rights but which is guaranteed by the Constitution; and with an infringement which darkens the climate of freedom in which the peaceful clash of ideas and the exchange of information must take place in a democratic society. Compensation must therefore be measured by the yardstick of liberty, and not weighed in the scales of commerce”.

The Government in power under the Republican Constitution wielded so much authority that it could use its power to emasculate the opposition and its supporters, and one of the manners in which they did this was to acquire land under the notorious Land Acquisition Act — which was amended in 1979 — to acquire land of political opponents for spurious reasons. In 1982 a land belonging to one of the key supporters of the SLFP was acquired allegedly for a public purpose.

The Court of Appeal dismissed an application for Certiorari Writ to quash the order of acquisition on the basis that it was politically motivated. The Court of Appeal refused to grant the Writ.

When the SLFP supporters appealed to the Supreme Court against the order of the Court of Appeal the Urban Development Authority stated that land was required for the purpose of building a shopping complex before the Gam Udawa celebrations.

It is also interesting to note that the junior counsel who appeared in support of the SLFP supporter was none other than Kusumsiri Balapatabendi, the present Secretary to the President. R.K.W. Gunasekera appeared with him. This matter came before Justice Fernando, Justice Wadugodapitiya and Justice Dheeraratne.

Many would have thought that chances would be slim as the most important event in the calendar of Mr. Premadasa was the annual ‘Gam Udawa’ celebrations and Buttala ‘Gam Udawa’ was one of the biggest Gam Udawas ever to be held by him. Others would have said since all three judges had been appointed by the UNP, the SLFP supporter would not have any chance, especially when the Court of Appeal had rejected the application to quash the notice to acquire the land.

Justice Fernando in a landmark judgement upheld the supremacy of the Courts. He thus prevented the political masters of the day, in the name of progress and good governance from taking petty political revenge from their opponents.

On behalf of the Government the Attorney-General said the Minister had absolute discretion and to take over any land and the Minister’s refusal to exercise discretion could not be questioned.

Commenting on this, Justice Fernando said: “There is a fundamental fallacy in this contention. The purpose of the Land Acquisition Act was to enable the State to take private land, in the exercise of its right of eminent domain, to be used for a public purpose, for the common good; not to enable the State or State functionaries to take over private land for personal benefit or private revenge.

“Where the element of public benefit faded away at some stage of the acquisition proceedings, the policy of the Act was that the proceeding should terminate and the title of the former owner restored; The argument that an executive discretion of this nature is unfettered or absolute, that the repository of such a discretion can do what he pleases, is not a new one. But it is one which has been unequivocally rejected.

“The discretion conferred in 1979 must also be considered in the background of the Constitutional guarantees which sought to make the Rule of Law a reality and in particular Article 12 of the constitution”

Justice Fernando, who was not one of the favourites whether it is the UNP or the SLFP, quoting Justice Douglas of the US Supreme Court, said: “Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler, some civil or military official, some bureaucrat. Where discretion is absolute, man has always suffered. At times it has been his property that has been invaded, at times, his privacy, at times, his liberty of movement; at times, his freedom of thought; at times, his life. Absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other inventions.

“The decision of the majority makes a tyrant out of every contracting officer. He is granted the power of a tyrant even though he is stubborn, perverse or captious. He is allowed the power of a tyrant though he is incompetent or negligent. He has the power of life and death over a private business even though his decision is grossly erroneous. Power granted is seldom neglected”.

Tyrants whether in the US or in Sri Lanka want unfettered absolute power. The Supreme Court and the Court of Appeal have resisted the advances and psychopathic manifestations of successive rulers — especially under the JRJ Constitution, the President becomes ex facia a tyrant. So far the Supreme Court and Judges like Justice Fernando had a tough time in interpreting the law whether it was the UNP or the SLFP in power. It has become an accepted principle of the Supreme Court. That is why we have in this column fought for an absolutely unfettered Supreme Court and a Court of Appeal. Therefore, we steadfastly believed that every Judge should measure up to the highest standards or he or she should immediately vacate such position.

It is with pleasure that I reiterate what President’s Counsel H.L. de Silva said recently: “From this standpoint, I suggest that the central question is: does every Judge – whether it be a man or woman – measure up to the standards and norms of proper conduct and behaviour, have they the moral character and temperament which the community is entitled to expect of one who occupies the seat of justice? If he or she does not, it is unarguable that such an individual must forthwith vacate the hallowed place in the Temple of Justice, for his continuing presence therein would in fact be an excrescence – a detestable miasma afflicting the whole legal environment. There can be no compromise, no dilution of the standard”

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