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SRI LANKA: Justice Mark Fernando: The right man, in wrong times

Asian Human Rights Commission

Justice Mark Damien Hugh Fernando, who graced the bench of Sri Lanka’s Supreme Court from March 1988 until his premature retirement in 2005, passed away on 20 January, 2009. Undoubtedly, his independent and jurisprudentially sound judgments during his long tenure at the apex court, has left an indelible mark in the annals of that institution.

Perhaps some of his best judgments were in relation to the interpretation of the fundamental rights provisions of the Sri Lankan Constitution. Over a long period he interpreted constitutional provisions relating to arbitrary arrest and detention and the rights to be free from torture in particular. In later judgments he often dealt with some of the major problems of the Sri Lankan policing system.

In several judgments, he observed that despite the many Supreme Court judgments against the police, police torture was on the increase. In others, he attempted to hold the heads of the police and armed forces, responsible for rights violations by their subordinates.

In the famous case of Gerard Mervin Perera (SCFR 328/2002), he went so far as to say:

"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 acquies cence and condonation (if not also of approval and authorization).?lt;/P>

He also made significant judgments relating the freedom of expression and media freedom. Many a time, he expressed that 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. The judgment became a barrier to the executive’s arbitrary interference with the media.


Justice Fernando’s judicial career symbolically expresses the tragedy of the Sri he Lankan judiciary, particularly, the Supreme Court. It is said that Justice Mark Fernando as a lawyer, contributed to the drafting of the 1978 Constitution of Sri Lanka.

Ironically, the tragic events that later developed in Sri Lanka, including the adverse environment in which the Supreme Court had to work in, was the result of that Constitution—the brainchild of the first executive president, J.R. Jayewardene. 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 has 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, during the formation of the United States of America, the chief justice, John Marshall, who was the 4th Chief Justice from 1801?835, 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 certain periods as for instance during 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 at tempt ing 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.

"...The number of credible complaints of torture and cruel, inhuman and degrading treatment whilst in Police custody shows no decline.  The duty imposed...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..."

-From the Judgement in Gerard Mervin
Perara's case (SCFR 328/2002)

Posted on 2009-08-06
Asian Human Rights Commission

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