He was a judicial colossus, a chief among justices, a man among men and women, mentor to thousands of law graduates and students in general, a social engineer through the times he served on the Council of Legal Education and as president of the Alumni Association of the Law Faculty of the University of Colombo.
The good priest at the requiem mass held in memory of Mark Fernando on January 27, 2009, said, “This school will forever be proud of this student…..who was a Christian and lived up to Christian values.” I was there in the chapel making my own communion with a man in regard to whom words deserted me when I attempted to express my inner feelings. I felt, being a Buddhist, had he been born a Buddhist, he surely would have espoused Buddhist values.
Apart from that, memories of how he had been the leader of the English debating team in school beating all schools, how he had secured a 1st division pass at the University entrance, his exemplary academic and professional achievements thereafter (securing 1st Class Honours at both the LL.B. and the then Advocates Examination at Law College, culminating in the University of Colombo awarding him an LL.D. around the year 2000 or so), passed through my mind.
He was disarmingly unassuming about these achievements and one memory in particular, when I solicited his assistance to be the local supervisor for a Ph.D. that I was pursuing in or around 1996 (from Hawaii), came to mind. I recall that when I spoke to him about this, he said, “Why are you coming to a mere LL.B.? You should ask somebody who holds a Ph.D.”
To which I replied: “That is not an issue. You can surely dictate Ph.Ds if you wanted to.
I’ll take the risk in regard to my application.” That was the nature of this judicial personality.
Memories of his legendary quips from the Bench are far too many to quote in full in this limited space. However, I must mention in particular, one case in which I had appeared as Counsel before him, I recall that his judicial response had been negative to my submissions in yet another instance, due to, if my memory serves me right, the application being out of time. However, my client had suffered. I sought refuge in judicial adventurism prompting me to make an emotional appeal in ‘a last ditch effort.’ So I submitted, quoting John Locke, “should either the executive or legislative, when they have got power in their hands, design or go about to enslave or destroy them, the people have no other remedy than this, as in all other cases when they have no judge on earth, but to appeal to heaven,” (apparently a euphemism for revolution, as Alpheus T. Mason has commented).
Having so quoted, I submitted: “Thankfully, we have Your Lordships on earth, to give the relief I am seeking.” His Lordship smiled (closing the brief) and said politely, “We agree. Your only hope is to appeal to the judges in heaven. We on earth cannot help you.” That was the man, a model justice, even as he would refuse to respond, would so refuse in his typically intellectual way. No doubt I was disappointed and yet I felt no forensic remorse.
His Lordship having announced his ‘premature retirement’ in late 2003 and some of us (H.L. de Silva, P.C., Desmond Fernando, P.C., Nehru Goonathilake P.C., Dr. R.K.W. Goonesekere (senior Attorney-at-Law), and E.D. Wikramanayake (senior Attorney-at-Law), along with myself, Ms. Kishali Pinto-Jayawardena (Attorney-at-Law), J.C. Weliamuna (Attorney-at-Law) and Elmo Perera (Attorney-at-Law) in our efforts to have that decision reversed, also having failed (while the president and the prime minister of the country failed to even tokenly respond to the said effort), we were compelled to resign ourselves to the fact that, we had lost a battle.
Yet, the fact remains that Mark’s battle was not over, as he, even after being diagnosed with a dreaded disease, continued to impart his intellect through the limited venues that were on offer to contribute towards the improvement of the quality of life in our country. One memory that is etched in my mind forever is of him in crutches, while aided by his wife, addressing a forum even with his mental faculties as agile as ever.
Those ideas that he put forward remain in my mind. He is gone. Yet, we who are left here on earth must take the challenge which His Lordship so well met, to walk one more mile, as he himself did, right up to continuing to work with the welfare association of his alma mater St. Joseph’s College to help the younger generation and the school in general.
As his daughter Tania reminisced in the hallowed chapel of St. Joseph’s College at the service held after he passed away: “Dadda’s personality was such that he never questioned the fate that had visited him, for even Jesus Christ was crucified and put to death when he was just almost 30 years old.”
The theme of Tania’s said reflection of her father’s life thus became apparent to me.
Mark—His Lordship, Dr. Fernando—had fitted into his Lord’s Master Plan.
Dr. J. de Almeida,Guneratne, P.C.