FOR IMMEDIATE RELEASE
AHRC-STM-018-2009
January 21, 2009
A Statement by the Asian Human Rights Commission
SRI LANKA: Justice Mark Fernando – an appreciation
Justice Mark Fernando, who became a Supreme Court judge in March 1988 and who served as a judge until his premature retirement in 2005, passed away on the 20th January, 2009. His long career as a judge of the Supreme Court has left its mark by way of independent and thoroughly rational judgements. Perhaps the best of his judgements to be remembered would be in the area of the interpretation of the fundamental rights provisions of the Constitution of Sri Lanka.
Over a long period he interpreted constitutional provisions relating to arbitrary arrest and detention and the rights against torture in particular. Towards the latter part of his career, on various occasions, he often dealt with some of the major problems of the Sri Lankan policing system by interpretation of the provisions on fundamental rights. He observed that despite of many judgements given by the Supreme Court violations by the police, particularly in the area of torture were on the increase. In some judgements he made attempts to make the heads of the police service and the armed forces responsible for the violations of rights by their subordinates.
In the famous case of Gerard Mervin Perera (SCFR 328/2002) he stated:
The number of credible complaints of torture and cruel, inhuman and degrading treatment whilst in Police custody shows no decline. The duty imposed by Article 4(d) to respect, secure and advance fundamental rights, including freedom from torture, extends to all organs of government, and the Head of the Police can claim no exemption. At least, he may make arrangements for surprise visits by specially appointed Police officers, and/or officers and representatives of the Human Rights Commission, and/or local community leaders who would be authorized to interview and to report on the treatment and conditions of detention of persons in custody. A prolonged failure to give effective directions designed to prevent violations of Article 11, and to ensure the proper investigation of those which nevertheless take place followed by disciplinary or criminal proceedings, may well justify the inference of acquiescence and condonation (if not also of approval and authorization).
His cases should be studied carefully as they lay bare the jurisprudence that he was trying to evolve in order to deal with, perhaps the most disheartening development in Sri Lanka, in terms of the collapse of discipline in the police and the armed forces.
He also made several significant judgements relating to the freedom of expression and media freedoms. In several judgements he expressed that the criticism of the government is a right of the people and that the media should not be allowed to be penalised for criticising the government. These judgements remain a barrier to the executive for arbitrary intervention into media freedoms.
Justice Mark Fernandos judicial career symbolically expresses the tragedy of the Sri Lankan judiciary in general and the Supreme Court in particular. It is said that Justice Mark Fernando as a lawyer also contributed to the drafting of at least some part of the 1978 Constitution of Sri Lanka. Whatever may have been the motive for contributing to that constitution the tragic events that were to develop in Sri Lanka, which also included the adverse environment in which the Supreme Court had to work, was formed by this constitution created by the first executive president, J.R. Jayewardene. The sole purpose of the constitution was to safeguard the position and the ambition of Jayewardene himself. The unfortunate manner in which Justice Mark Fernando himself had to retire prematurely was made possible by this constitution. This constitution hangs as a noose over the rights of everyone and Justice Mark Fernando too, had to pay a heavy price due to internal contradictions within the judicial system because of this constitution. It is a tragedy for any person who has devoted his entire life for the promotion of the jurisprudence of his country to be trapped in circumstances in which jurisprudence itself is regarded as irrelevant in the country. The 1978 Constitution that created a one man system, destroyed the supremacy of the constitution and the supremacy of the law. As a result lawlessness in governance became the order of the day. Protection of the individual within the framework of the law became an impossible task.
In the contest between the executive and the judiciary in the early years of the formation of the United States the chief justice, John Marshall, who was the 4th Chief Justice from 18011835, fought hard and laid the foundation for the supremacy of the constitution and the sole responsibility of the judiciary for the interpretation of the constitution. It is that foundation that has provided the basis for the separation of powers and the independence of the judiciary in the United States which has withstood the test of time, despite of setbacks in some periods like that of the administration of President George W. Bush. J.R. Jayewardene knowing that the constitution would become a hindrance to his ambitions for unlimited power distorted the constitution itself. The adverse consequence of this strategy is now felt in the lives of every Sri Lankan including the judges.
In extremely difficult circumstances Justice Mark Fernando struggled to develop jurisprudence attempting to interpret the constitution as if no discontinuity had been created in the tradition of the separation of powers. Thus, he reflected that there exists a contradiction between the political reality and the legal reality in the country, a contradiction that will need to be resolved sooner rather than later. In the 200 year-old tradition of the Supreme Court there is now a serious problem. Reflection into the life and circumstances of Justice Mark Fernando must encourage Sri Lankans to undo the limitation on their freedoms created by their constitution itself.
