13th July 1997

A champion of human rights in the era of terror

By Mudliyar

Mangala Samaraweera's Ministry of Posts, Telecommunications and the Media issued an unsigned press release as quickly as the Bar Association reacted to the garlanding by Mr. Desmond Fernando a colleague and a Life Member of the Bar Association. Mr. Fernando is a President's Counsel and the President of the International Bar Association. The statement of the Media Ministry sought to take umbrage to a reference made by Mr. Fernando when he stated 'today freedom and particularly the freedom of expression is in peril in this country'.

I am sure the Minister may have not gone through the statement carefully before releasing it to the Press. Probably he did not even associate himself with it - hence the anonymity of the release. The statement which has been typed has been corrected more than five times by pen. Obviously whoever issued this statement on behalf of the Minister of Posts, Telecommunications and Media (about an event in Hulftsdorp, mind you) was completely misguided and misinformed about the issues raised by the Fernando statement. The Ministry states 'eternal vigilance certainly is the price of liberty but had Mr. Desmond Fernando been as vigilant earlier as he is today, thousands may have been alive today to see the pathetic sight of the President of the International Bar Association garlanding a person immediately he has been convicted on criminal charges by the Supreme Court.'

I do not know how an important Ministry headed by such an intelligent Minister like Mr. Samaraweera would release a statement which is based on erroneous facts. For your information Mr. Minister, Sinha Ratnatunga was not convicted on criminal charges by the Supreme Court. Unless of course you are already convinced that Mr. Ratnatunga's appeals to the Court of Appeal and then to the Supreme Court, would affirm the conviction. It further states: 'had he done so he may have not been rewarded by being made a President's Counsel but many innocent lives may have been saved'. We all know President Premadasa appointed several eminent lawyers as President's Counsel. But the information that Mr. Fernando was rewarded by being a President's Counsel may be the exclusive preserve and the knowledge of the Hon. Minister's Ministry. The entire legal profession knows that President Premadasa, whatever his other faults, was the only President who strictly followed the resolution adopted by the Bar Association on the June 24, 1989 giving the minimum criteria that should be adopted when considering the eligibility of an Attorney-at-Law for appointment as President's Counsel. One of the criteria was that the Attorney-at-Law should have been in continuous and active practice for not less than 20 years.

The Minister is aware how the present Government ignored these recommendations and appointed lawyers who are junior and much less than 20 years in active practice as President's Counsel.

Mr. Fernando was the President of the Bar Association and was a member of the International Commission of Jurists. For his distinguished service to the Bar Association, the Bar unanimously adopted a resolution to present him with the highest honour the Bar could confer on another member, i.e., Life Membership 'Honoris Causa.'

It has been the convention to appoint the president of the Bar Association as a President's counsel — if he is not one. Mr. Fernando, and later D.W. Abeykoon were appointed as President's Counsel in recognition of their distinguished services to the Bar Association.

The Media Ministry statement referring to the killing of Wijedasa Liyanarachchi says Mr. Fernando did not utter a word of protest when such human rights lawyers were killed. Mr. Samaraweera should have sought the advice of anyone who had some knowledge of the Bar Association before making such sweeping and absolutely false statements. Whether this statement amounts to criminal defamation or not is another matter.

When other human rights activists who had a political agenda and formed Mothers' Fronts, Fathers' Fronts and Boys' Fronts after the event, Mr. Fernando as the Vice President of the Bar Association was in the forefront of the loudest protest that was ever launched by the Bar on the death of Mr. Liyanarachchi. From the time Mr. Liyanarachchi was abducted from his boarding house in Colombo, Mr. Fernando was ever vigilant and did his best to save the life of Liyanarachchi.

President's Counsel Ranjith Abeysuriya and a number of others were in constant communication with the I.G.P. After the brutal killing of Mr. Liyanarachchi the protest that was launched by the lawyers in every single Court House was spearheaded by Mr. Fernando. When the mortal remains of Mr. Liyanarachchi were removed by force by the Armed Forces and taken to Weeraketiya the politician who gave unstinted support to the Bar Association was Mahinda Rajapaksa. When the Bar knew about the removal of the body to Weeraketiya by the armed force against the order of the Magistrate which ordered to bury the body in Colombo, there was a secret move to bring the body back to Colombo. Mr. Rajapaksa agreed to transport the body in his vehicle from Weeraketiya to Colombo in the night. Later the plan was abandoned as the relatives were not inclined to bring back the body to Colombo. Mr. Samaraweera before issuing the statement castigating Desmond Fernando about his inaction during that period, should have consulted his Cabinet colleague Mahinda Rajapakse. Then he would have enlightened him on the action Mr. Fernando took as the President of the Bar Association to prevent killings not only by subversives but by never identified killer squads.

If there was one organisation that vehemently condemned and vociferously protested against the killings it was the Bar Association of Sri Lanka headed by Desmond Fernando as the President. When other organisations were virtually squirming in fear the Bar relentlessly pursued its struggle against such extra-judicial killings.

On September 2, 1979, Batty Weerakoon proposed the following resolution which was seconded by W.P. Gunathilake and was unanimously passed by the House: "This meeting condemns the killing of our colleague Kanchana Abeypala by a force that had earlier threatened him in regard to the exercise of his professional duties, as set out in a letter of July 11, 1989 to the Hon'ble Chief Justice. We also condemn and deplore the threats that have been issued to other lawyers too in regard to their professional duties."

Immediately after the adoption of the resolution Mr. Fernando and four other Senior members met President Premadasa and made representations on behalf of the Bar Association.

The stand he took to condemn the killing of Richard De Zoysa is known to two people more than anyone else. Had Mr. Samaraweera consulted one of his colleagues in Parliament, Batty Weerakoon, who was the counsel for Richard's mother and his client Manorani Saravanamuttu, they would have enlightened him on the unequivocal stand Desmond took. The officials who prepared the statement may have been abroad, like some politicians who left the country in fear of the JVP.

If there was one single person who more than any body else saved the lives of thousands of youth in this country it was none other than Mr. Fernando. Whilst opposing the Government for the extra-judicial killings, he was able to force the Government to do certain things which ultimately helped and saved the lives of many people. It was his suggestion that the ICRC should be brought to the country to trace a large number of disappearances. He was able to convince Mr. Premadasa of the urgent necessity to bring the ICRC to prevent the forces killing suspects in custody. Though a large number of Cabinet ministers including, Ranjan Wijeratne, opposed this move, Mr. Premadasa listened to Mr. Fernando and agreed with him and immediately made arrangements to bring down the ICRC. After the advent of the ICRC, a large number of persons who were kept at secret places of detentions were traced by them. The moment a person was abducted, the ICRC moved in and traced the person at a place of detention.

His relentless struggle for the preservation of the rule of law was such that he was constantly under threat by the forces opposed to subversives and sometimes the subversives themselves. Like many politicians of that area he did not leave the country in search of safer havens.

He remained in Sri Lanka and fought to preserve the rule of law and democracy from peril. He was able to convince the President of this country to pay compensation to every lawyer and other victims killed during this period of terror. He condemned the killings whether they were done by death squads or the J.V.P. If not for him at least thirty more lawyers would have been killed. He urged the President to detain persons suspected of subversive activities and rehabilitate them. Mr. Desmond Fernando was able to internationalise the issue of human rights violations. He was able to get hundreds of Bar Associations and Human Rights groups to write to the President of Sri Lanka expressing their concern regarding the violations of fundamental rights. I reproduce below a letter written by Hennepin Country Bar Association of Missouri, U.S.A. to President Premadasa.

His Excellency President R. Premadasa

Presidential Secretariat

Republic Square

Colombo 1

Sri Lanka

August 24, 1990

Your Excellency,

"I am writing to express the concern of the Hennepin County Bar Association about the killings of and threats against human rights lawyers in Sri Lanka.

"Reliable reports indicate that over 20 lawyers who have defended suspected members of the JVP and victims of human rights violations or filed habeas corpus petitions have received death threats. Other lawyers, like Kanchana Abhayapala, Sarath Karaliyadda and Charitha Lankapura have been killed. Furthermore witnesses who testify against security forces at inquiries are themselves threatened or killed, preventing the successful prosecution of security forces accused of violating human rights.

"It is the position of the Hennepin County Bar Association that intimidation of human rights lawyers represents a deliberate attempt to prevent victims of human rights violations or their relatives from having resources to legal remedies. This intimidation of lawyers and witnesses may also be deliberate protection of security forces suspected of committing human rights abuses.

"It is a widely recognised principle that lawyers should not be identified with their clients. I respectfully urge your government to publicly condemn this intimidation and institute an independent inquiry into the killings of lawyers with the aim of bringing those responsible to justice. I further request your Government to take all steps to ensure that all lawyers involved in human rights work are provided with adequate protection to guarantee their safety and allow them to carry out their legal work. As fellow lawyers we will be monitoring the cases of Batty Weerakoon and his colleagues with great interest."

Respectfully yours,

Donald E. Wiese

c.c. The President, Bar Association of Sri Lanka

Desmond Fernando opposed the adoption of the Criminal Justice Commission after the abortive insurrection in 1971. He was a loner and the majority in power was against him for his stand. He was against the Special Presidential Commission laws and vehemently protested against the deprivation of the Civic Rights of Sirima Bandaranaike. He was a family friend of the Bandaranaikes.

When he protested against the deprivation of the Civic Rights of Ms. Bandaranaike he was in a minority in the legal profession. He protested against JRJ when he removed judges of the Supreme Court. He was not very popular with the J.R. Jayewardene government or with a large number of lawyers who supported that government.

He fought against the violence that was unleashed by the government and the JVP during the Premadasa regime. He protested against the pernicious undemocratic laws like the PTA and the emergency regulations introduced and invoked by successive governments . His stand taken on these matters was never popular at that time but later the majority not only respected his views but accepted them.

At his request President Premadasa released Rs. 20 million, in addition to the approved budget, to construct the present building of the Bar Association.

But at the ceremony to lay the foundation in the presence of dignitaries and politicians of the Premadasa Government including the law minister, he re-affirmed his faith in human rights and condemned the extra-judicial killings. "Perhaps at this moment of time we should pause to remind ourselves that the prestige of the legal profession has no connection with the size or the nature of the building which houses its professional organisation.

Whether we worked out of a three-storeyed building or out of a little room in Hulftsdorp, we have always been respected.

This is because we have with unflinching courage championed the rights of the people of our country, sometimes, as in the case of our colleagues Kanchana Abhayapala and Sanath Karalliyadde, at the risk of losing our lives.

Let us therefore on this occasion re-dedicate ourselves to protecting and promoting the rights of our people, knowing well that if we are killed in the process, no police inquiry will ever reveal who our murderers were. We therefore take this opportunity of reassuring the people of our country that we shall never fail them."

Go to the Jungle Telegraph

Return to the Editorial/Opinion contents page

Go to Rajpal's Column Archive