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Somasunderam Nadesan
Q.C.
10th Death Anniversary - 21 December
1996
Nadesan & the Judges -
Suriya Wickremasinghe, Attorney at Law,
"...Nadesan's speeches and writings tend
to be timeless because, although he was
dealing with contemporaneous problems, he
always looked beyond them to basic principle.
While the contemporaneous situations may or
may not have their parallel today, the
formulation of basic principle invariably
remains valid. Sketched here in brief are
some instances where Nadesan grappled with
questions of the role and independence of the
judiciary, or its relationship with the other
organs of state power..."
Ten
years later - a Tribute - A.S.de Silva
"Some quarrellers do not realise that in
this world
We must all at some time cease to live
But there are others who do realise,
And they will settle their quarrels."
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Introduction
The tenth anniversary of the death of S. Nadesan, Q.C.
fell on December 21, 1996. The present commemorative
article focuses on just one aspect of this brilliant and
versatile Sri Lankan - his impassioned and total
commitment to the institution of the judiciary. We sorely
miss Nadesan today when this institution is beset afresh
by controversy.
Fortunately, his numerous legal battles. speeches and
writings, have left us with a veritable, goldmine which
may provide some guidance in getting our thinking right
and straight on issues of the day.
We are also fortunate that he had the habit of clarifying
his thoughts by putting them down in writing, and in
writing out speeches he was going to deliver or oral
submissions that he planned to make to Court, many of
these unpublished manuscripts have been preserved.
Nadesan's speeches and writings tend to be timeless
because, although he was dealing with contemporaneous
problems, he always looked beyond them to basic
principle. While the contemporaneous situations may or
may not have their parallel today, the formulation of
basic principle invariably remains valid.
Sketched here in brief are some instances where Nadesan
grappled with questions of the role and independence of
the judiciary, or its relationship with the other organs
of state power.
This article can do little more than outline the surface,
and draw attention to the extensive treasure that is
there, most of which is readily accessible to anyone
wishing to consult the relevant law reports, sessional
papers, speeches, written submissions, publications and
other documents.
Judges and the 1972 Constitution
When a new Constitution was being drafted in 1971 Nadesan
wrote, at record speed, a book as a contribution to the
debate.
It was both a privilege and an ordeal to assist him
editorially in this task, to which he applied himself
with demonic vigour. One chapter is devoted to the
administration of justice, which topic also features
prominently in the delightful sessions of an imaginary
Constituent Assembly described in the same book.
Basic principle, indeed basic common sense, on the
respective role of judges and the legislature, the
protection of fundamental rights, the need to curb
legislation that encroaches on them and the independence
of the judiciary including the appointment procedure are
dealt with in clear, incisive terms. Eminently readable,
the writing is laced with the impish sense of humour in
which Nadesan found a potent weapon to reinforce whatever
point he was seeking to make. Nadesan tells us solemnly
that 'with the overcrowding at the bar' lawyers who are
aspirants to judicial office may feel they can usefully
occupy their time campaigning and "attending election
meetings and patiently listening to the speeches and
sitting on the platform making their presence felt".
A lawyer who so helped the winning party 'may naturally
be regarded by the Minister, if not by several Ministers,
as a loyal man whose political beliefs are the same as
that of the party". Then again there will be election
petitions in which a loyalist may appear as Counsel.
"Then" says Nadesan "the trouble begins. Even before the
Minister of Justice settles down to his job he will be
"harassed by these loyalists for judicial appointments
and it will require all his tact to keep everyone happy.
In the meantime, the aspirants to judicial office may
canvass the support of other members of the National
Assembly to put in a word to the Minister of Justice or
to the Council of Ministers.
The Minister of Justice may take the path of least
resistance and appoint a loyalist as a judicial officer
or even as judge of the Supreme Court preferring him to
others of greater ability, better knowledge of the law
and wider practice and experience". Is all this
conducive, Nadesan asks us, to securing the independence
of the judiciary'? Concluding, he sounds a note of alarm
that rings loud and clear across the span of 25
years:
"Ceylon has today a judiciary of which it can
justifiably be proud. This judiciary has a tradition of
deciding without fear or favour between the subject and
the state. By the very nature of this tradition, it may
be difficult for a 'loyalist' for sometime to give
effect to his peculiar notions of justice. But in
course of time with loyalty to party, and not character
and competency, being the deciding factor in the making
of appointments this tradition will be no more".
Criminal Justice Commission and the Great
Walkout
Nadesan's commitment to the institution of the judiciary
was dedicated, passionate and complete. This dedication
included standing up to judges robustly when he thought
they were wrong, and being blunt and even defiant when he
felt the bench deserved it; he was neverr obsequious or
servile. In the preliminary stages of the marathon trial
of the main 1971 JVP suspects, Nadesan opposed a decision
of many of the defence counsel (taken at a huge, historic
and heated conference of counsel and clients all crammed
together in a smallish office room in the Welikada jail).
The decision was to walk out of the Commission in protest
if an anticipated ruling considered unfair was made.
Nadesan's position was that however wrong the ruling, one
must stay on and fight one's client's case, and on August
10, 1972 he stayed put during the Great Walkout of
lawyers (who never came back). Soon thereafter he started
to raise his own preliminary objection and the bench
ruled it would not consider it till the end of the case.
Nadesan persisted, and was asked to desist, but remained
on his feet and continued to press his argument, and was
asked to sit down, but continued regardless, and this
process was repeated for some time, with both parties
evincing an increasing determination not to yield.
The tension for everyone else in court was unbearable. It
was as if one saw two aircraft collide in mid-air, and
was waiting for the flames and sound of impact. But there
was neither conflagration nor crash. Great Walkout Number
Two simply took place, this time however by the five
judges, who abruptly adjourned and swept out of the room
while Nadesan continued to address their vanishing
Lordships.
Each side having thus made its point, the score was then
apparently considered equal, and the following day the
inquiry passed on to its next stage in complete
amiability, and so continued right to its end over two
years later as if nothing out of the ordinary had ever
occurred.
Constitutional Court and the Press Council
Bill
The Civil Rights Movement was one of several challengers
of the Press Council Bill of 1972 which it considered
incompatible with freedom of expression. Nadesan appeared
for CRM in the Constitutional Court where the hearing on
this took place. Others participating included H.
W..Jayewardene, QC on behalf of the leader of the UNP, H.
L. de Silva on behalf of the Moratuwa Mahajana Sabha, and
Jayatissa Herath on behalf of the Rev. Matara
Chandarama.
It was clear that the legal arguments could not be
satisfactorily concluded within the two-week period
prescribed by the Constitution, and a discussion took
place as to whether this limit was absolute or whether it
was merely for the guidance of the Court which, in a fit
case, could extend the time. In legal parlance, was the
provision mandatory or merely directory.
Nadesan had no difficulty in convincing the court that it
was directory. The United Front, he said, had obtained a
mandate to draw up a new constitution that would secure
fundamental rights and freedoms. It had implemented this
promise by providing that whether a provision conflicted
with a fundamental right could be examined before it
passed into law, and for this purpose a constitutional
court was set up.
"What is contemplated", said Nadesan, "is a judicial
decision as to whether a provision of a Bill is
inconsistent with the Constitution. A judicial decision,
means that the court must judge conscientiously and as
correctly as it possibly can. To do this, the court must
first inform itself regarding the arguments for and
against, read the authorities cited, and make up its
mind. The human mind is not an automaton which can be
called upon to make a decision in a limited time without
regard to arguments, reasons or precedents".
Nadesan then proceeded with a compelling exposition of
what must have been the intention of the Constituent
Assembly. If one holds the time limit impcrntive, a
citizen could be deprived, for no fault of his, of the
only method that the constitution had given him of
securing his fundamental rights.
"Could the members of the Constituent Assembly ever have
intended to deprive the citizen of his right merely
because the Constitutional Court finds itself unable to
give a decision within 14 days? It is inconceivable that
the Constituent Assembly Members, who were pledged to
secure the fundamental rights of the citizen, could have
intended this".
The only reasonable interpretation, he continued, was
that the provision is intended as a guide and no more.
"What is more important than the time factor is that
there should be a well considered and proper decision".
There was complete rapport between Bench and Bar. ("Mr.
Nadesan, I could go on listening to you for ever!" said
presiding judge T. S. Fernando J, at one point).
The Constitutional Court sat in a room in the Parliament
building, and it became clear that some members of the
National State Assembly took a different view of the
14-day time period and might press to proceed with the
Bill without waiting for the Court's ruling.
At the end of his submission, Nadesan thus felt it
advisable to stress the respective role of the courts and
the legislature. It has to be remembered, he said, that
the Constitution is supreme. "The National State Assembly
and the constitutional court are both creations of the
constitution. Each of these bodies is supreme in its own
sphere, and must observe the law and the
constitution.
"The constitution provides that the National State
Assembly cannot directly exercise judicial power (except
in regard to its own privileges) and that judicial power
has to be exercised through the courts and other
institutions created by law. The question of the correct
interpretation of the law in dispute involves the
exercise of judicial power. "It is not the function of
the National State Assembly to interpret even the laws
enacted by it when a dispute arises. Indeed the Assembly
is ill equipped to interpret laws.
This cannot be done by the application of the party whip.
Interpretation of laws requires trained Judges who have
to consider all aspects fully in the light of legal
principles. "It is because the Constituent Assembly
considered that the National State Assembly was
ill-equipped to interpret laws that it created a
constitutional court to decide disputes as to whether a
Bill infringes the constitution.
"The constitutional court has to interpret the
constitutional provisions regarding its awn jurisdiction,
powers and duties, No other body is recognised by the
constitution to perform this task. 'The constitution
cannot function smoothly unless the decisions of the
court in matters regarding Its jurisdiction, powers and
duties are accepted as authoritative by all other bodies
created by the constitution
The Court continued to hear the case until its sittings
were abruptly terminated in curious circumstances, but
that is another story.
Parliamentary privilege - the exercise of
judicial power by Parliament
Nadesan as a Senator and a lawyer played a major role in
the creation of the law on parliamentary privilege in
1952. He was a member of the Joint Select Committee of
the House of Representatives and the Senate which drafted
the 1953 Act on this subject. Significantly, the
Committee decided unanimously that the legislature should
not invest in itself the punitive power of sentencing an
offender to fine or imprisonment, which should be
entrusted to the Supreme Court alone.
"It is undesirable that a body should be the judge in its
own cause", Minister of Justice Sir Lalita Rajapakse
explained in piloting the Bill through Parliament. It is
no secret that it was Nadesan who cogently argued for
this principle which was readily accepted by his fellow
members of the Select Committee. In fact, the Leader of
the House, Sir John Kotelawala, in Parliament paid
specific tribute to Nadesan's contribution to the work of
the Select Committee. Thus was the distinct line between
the proper exercise of the judicial and the legislative
powers arrived at and carefully and correctly drawn by
unanimous democratic decision.
Nadesan was, therefore, appalled when in 1978 a hasty
amendment, rushed through in the teeth of opposition
protest, changed this position. The very next day, in the
infamous "Ceylon Observer case" arising out of a comic
photo/caption mix-up, two journalists were hauled up
before the whole House, "tried" and "sentenced". Nadesan
wrote a report for the Civil Rights Movement which was
also serialised in the Sun newspaper. He explained how,
and why, the exercise of punitive powers by Parliament
had been deliberately excluded by the Act, and stressed
again the undesirability of Parliament exercising the
judicial function.
A devastating analysis of Parliament's farcical
proceedings in the Ceylon Observer case followed. "The
very first case before the National State Assembly ....
affords a telling illustration of the dangers inherent in
the new amendment giving punitive powers to the NSA of
sentencing persons to fine or imprisonment", concluded
Nadesan.
"Courts of law are the best institutions equipped to
interpret a statute. It is their proper function just as
legislation is the proper and rightful function not of
the courts but of the legislature'.
Far from appreciating the excellent legal advice tendered
to it gratis by Nadesan, the legislature accused him of
breach of privilege claiming he had defamed Parliament by
the article! Wisely, however, it exercised its option of
referring the trial to the Supreme Court. (Nadesan was
bitterly disappointed as he was looking forward to taking
on the entire Parliament in person single-handed, and
convincing its members, in a face-to-face confrontation,
that they should not exercise judicial functions).
His trial evoked international interest and was one of
Sri Lanka's cause celebres; he was ably defended by H. L.
de Silva and acquitted.
Daily News contempt case
Nadesan's commitment to the independence of the judiciary
led him to raise - and doggedly pursue -issues even when
one suspected that the judges themselves might have
preferred to dodge facing them. One such instance was
when in 1983 the Daily News reproduced a highly
defamatory allegation against two sitting judges of the
Supreme Court. This allegation was contained in a notice
of a Motion contained in the Order Paper of Parliament.
Accurate reports of the proceedings of Parliament are, of
course, privileged, which means they cannot be the
subject of action for defamation. Nadesan's argument
however was that the same protection did not apply to
contempt of court. The particular gravity of the
situation was that the motion was no private member's
frolic, but was by the government; it was directly
related to a ruling highly embarrassing to the
government, delivered by the two judges in question in
part of the complex legal aftermath to the deprivation of
former Prime Minister Sirima Bandaranaike's civic
rights.
Contempt proceedings could have been initiated by the
Supreme Court itself, or by the Attorney General, but
this was not done. It was left to a public-spirited
individual. Attorney-at-law Suranjith Hewamanne, ably
inspired and encouraged by Nadesan, to set the wheels in
motion in what more timid souls may have feared, held all
the promise of a confrontation between the judiciary and
the legislature.
If the judiciary drags its feet in protecting itself, it
may need to be prevailed upon to act. One cannot say the
judges deserve whatever they may get and wash one's hands
of the issue, for what is at stake is something far more
vital than the reputation or dignity of individual
judges.
With grim vigour and a total identification with the
complainant's cause, Nadesan explained to court
Hewamanne's motivation, using the practitioner's
convention of speaking in his client's voice:
"If people lose respect for the judges they will stop
coming to court for redress and they will start to take
the law into their own hands', he said, "and then there
will be chaos in this country, and I don't like that, and
therefore I have come to Your Lordships' Court . The
defence relied strongly on the freedom of publication and
the right of the public to know. This was a case in which
a balance had to be struck between two important and
competing interests. On the one had there was the need to
protect the judiciary, especially against attack from the
government, so that it can function fearlessly and
independently. On the other hand there was the freedom of
expression and information, especially in connection with
a matter to be brought before the legislature. The
hearing lasted fifteen days.
By a majority verdict the complaint of contempt of
court was upheld. (Rightly, no punishment was imposed, as
the offence had manifestly not been committed by the
newspaper with the deliberate intention of interfering
with the administration of justice). The judgments
contain important expositions of the role of the
judiciary, in particular that of Wanasundera J. who held
that the power vested in the judges to safeguard the
welfare and security of the people is also a delegated
part of the sovereignty of the people referred to in
Articles 3 and 4 of the Constitution; contempt against
the judges is therefore an insult offered to the
authority of the people and their constitution. Abdul
Cader J. said that "Parliament is a responsible body and
can well he expected to preserve and foster the dignity
of the Courts in the interest of the public. But an equal
duty rests on the Courts to safeguard that same dignity".
Parliament responded by amending the law to enable the
press to report contempt of court by the legislature with
impunity; one of many retrograde measures that need today
to be set right.
The
Great Lockout
"Here is a classic example of the uncertainties of
litigation and the vicissitudes of human affairs. The
annals of the Supreme Court do not record such a unique
event and I venture to hope there never will be such an
event in the years to come". So opens the report of what
must be the most extraordinary case to ever come before
our courts.
For over a week the country did not know whether it had a
Supreme Court or not. That we now know that we did in
fact have one all along is due to the indefatigable
efforts of S. Nadesan QC.
On September 9, 1983 Nadesan was addressing a five-judge
Bench of the Supreme Court in a fundamental rights
application challenging the banning of the Saturday
Review, when the judges mysteriously adjourned.
They had noticed that the Sixth Amendment to the.
Constitution - the text of which they had just received -
required them to take the new oath before the President.
In fact they had taken the oath before each other (which
was the original requirement of the Bill; this had been
amended in Parliament at the Committee stage).
A bizarre series of events followed, too complex to
recount here. Suffice it to mention that the Courts and
the Chambers of all judges of the Supreme Court were
locked and barred and armed guards placed to prevent
access. (The Chief Justice later said, "this act has
polluted the hallowed portals of these courts and that
stain can never be erased").
A few days later, the judges received fresh letters of
appointment and two oaths were administered to each. On
19 September, ten days after their abrupt disappearance,
the five judges assembled again to hear the Saturday
Review case. At this point, Nadesan contended vehemently
and tenaciously that the judges had never gone out of
office, and that therefore what was taking place was not
a fresh hearing but a continuation of the earlier
proceedings.
In view of the importance of the issue, the Chief Justice
referred this question to a Full Bench of nine judges.
The matter was argued for 12 days and all nine judges
wrote judgements at the end, seven supporting the
position contended for by Nadesan.
Several questions arose, some technical in nature, but
the most crucial went to the core and substance of the
institution of the judiciary. Again, it was a question
whether a requirement (in this case, that the oath be
taken before the President) was mandatory or directory.
Some curious arguments were put forward on behalf of the
Attorney General, who took up the position that the
judges had gone out of office.
In arguing that the requirement to take the oath before
the President is mandatory the Deputy Solicitor General
contended that the personal allegiance which the judges
owed to the Sovereign in the days of the monarchy is now
owed to the Head of State "who is entitled to ensure that
the allegiance is manifested openly and in his
presence".
"This", observed Samarakoon CJ, "is a startling
proposition. Sovereignty of the People under the 1978
Constitution is one and indivisible. It remains with the
People. It is only the exercise of certain powers of the
Sovereign that are delegated under Article 4".
The Chief Justice went on to point out that fundamental
rights and the franchise remain with the People and the
Supreme Court has been constituted the guardian of such
rights.
"I do not agree with the Deputy Solicitor General that
the President has inherited the mantle of a monarch and
that allegiance is owed to him. The oath in terms of the
Fourth Schedule which the Judges were required to take or
affirm in terms of Article 107 (4) swore allegiance to
the Second Republican Constitution and the Democratic
Socialist Republic of Sri Lanka".
Another argument was that by accepting fresh letters
of appointment the judges had precluded themselves
("estopped" was the legal term used) from asserting that
they had not gone out of office. Sharvananda J. surveyed
the provisions of the Constitution relating to the
judiciary, and found the Deputy Solicitor General's
submission "jarring" and "untenable".
"The doctrine of estoppel invoked by him is out of place
in the area of constitutional provisions… The
interest of the public is supreme. The basic concept of
judicial independence would be exposed to very great
jeopardy if rules of estoppel are allowed to modify
it.
"The Judges, once they accept appointment under Article
107(1) of the Constitution are not free to contract out
of the provisions of the Constitution and waive the
constitutional protection that is warranted to them in
order to protect their impartiality and integrity. Any
such waiver is null and void".
On this same point Soza J. held; "Security of tenure of
office of the Judges of the Supreme Court and Court of
Appeal is an essential component of judicial independence
and is entrenched in our Constitution as a principle of
State Policy for the benefit of the Sovereign people. No
amount of waiver or acquiescence even by the judges
themselves can defeat the security of tenure of judicial
office enshrined in the Constitution".
When Nadesan first said that the question of whether the
judges had gone out of office must be ruled upon, the
Chief Justice remarked that he was raising a hornet's
nest. If not for Nadesan's insistence, the matter may
never have been gone into, and we would not have today
the benefit of an authoritative account of. What took
place, and the careful analysis of anddecision on the
legal implications of these extraordinary events in which
the very existence of the Supreme Court and Court of
Appeal had been placed in doubt.
How and why Nadesan's insistence arose is not very clear
from the judgments, but it transpires from Nadesan's
notes of oral submissions which are fortunately available
to us. He recounts that when the court re-assembled on
September 19, the Chief Justice said that as the two
months before which the Order had to be made in the
Saturday Review Case expired on September 22 it would not
be possible to make the order, and requested Nadesan not
to press his petition, but to take up a second petition
which he had preferred in respect of a second similar
order made by the Competent Authority for the subsequent
month, as then the Court would have adequate time to make
the order before the expiry of two months. Nadesan then
stated that his position was that the date of making the
order was directory and not mandatory.
He also contended that the proceedings of the 8th and 9th
were valid proceedings before de jure Judges of the
Supreme Court and that he proposed to make his
submissions in this regard. He was not prepared to give
up his clients case in respect of the first period as
apart from everything else they had claimed compensation
in respect of the closure.
Nadesan continued:
"Your Lordship the Chief Justice then said that I was
raising a hornet's nest and requested me to proceed with
the second case. I stated that I was not prepared to do
so in the interests of my client which it was my duty to
safeguard. Your Lordships Court then indicated that the
matter will have to go before a bench of 9 Judges and
that is how the matter has now come up before Your
Lordships Court.
"All this shows that in these matters there are not only
two organs of the State, the Supreme Court and the
President, who are involved but also the people. The
Supreme Court and the President may have resolved their
differences in some particular way. But this does not
affect the right of a citizen to argue that indeed the
proceedings of the 8th and 9th were valid proceedings
before Supreme Court Judges who had not ceased to hold
office.
"The petitioners are not in any way responsible for the
difficulties that had arisen between Your Lordships Court
and the President. They had nothing to do with it. They
are entitled to present their case on the basis that you
had not ceased to hold office if that is the position
according to their lawyers."
Attempt to sack the Chief Justice
In 1984 Chief Justice Neville Samarakoon QC made a speech
at the annual award-giving ceremony of Sinnathuray's
Commercial Tutory, a modest event held at the Sea View
Hotel, Kollupitiya. The sequel was an attempt to remove
him from office.
A Select Committee of Parliament, chaired by the Hon. R.
Premadasa, first purported to examine his conduct. The
majority decision was unfavourable to the Chief Justice
(the voting coinciding with party allegiances).
Subsequently a resolution requesting the removal of the
Chief Justice was signed by 57 members of Parliament. The
Constitution provides that a judge of the Supreme Court
or Court of Appeal may be removed from office only under
certain circumstance, and this includes proof of
misbehaviour or incapacity. The investigation and proof
of such alleged misbehaviour or incapacity shall be
provided for by Parliament "by law or by Standing
Orders".
It was thus open to Parliament to pass a law providing
for an independent judicial tribunal to inquire into such
allegations, as was provided by the Judges Inquiry Act of
1968 in India. Instead, Parliament opted to make
provision by Standing Orders, and adopted the Select
Committee procedure. A second Select Committee, chaired
by the Hon. Lalith Athulathmtidali, was accordingly now
set up to investigate the CJ's conduct and report to
Parliament. At this stage Nadesan appeared for the Chief
Justice and conducted a most thorough and spirited
defence. At issue here was not merely the fate of
Samarakoon CJ but most fundamental questions affecting
the very institution of the judiciary.
Nadesan subjected to a rigorous analysis the findings of
the first Select Committee which had set the whole
operation in motion, and contended they were manifestly
wrong and had misled the MPs who signed the impeachment
motion. He then applied himself with zeal to tackling the
second Select Committee.
The defence contained a variety of elements including a
penetrating analysis of the Prize Day Speech, and an
exposition of freedom of expression. For present purposes
what is relevant, however, is Nadesan's
compelling argument on the unconstitutionality of the
Select Committee procedure itself. It was a clear
contravention of the independence of the judiciary.
In investigating, through a Select Committee, whether
there was misbehaviour, Parliament was in fact exercising
judicial power in direct contravention of the
Constitution. The Standing Order prescribing the Select
Committee procedure for this purpose was ultra vices and
unconstitutional.
These proceedings relate to one of the most important
events in the history of our judiciary. Nadesan's
analysis of the constitutional provisions relating to the
independence of the judiciary, and his examination of the
basic principles involved, are masterly. The Sessional
Paper in which they are recorded is fascinating
reading.
At the end, the Select Committee once again divided on
party lines. The majority found that the Chief Justice's
speech. while not amounting to "proved misbehaviour",
constituted "a serious breach of convention and has
thereby imperiled the independence of the judiciary and
undermines the confidence of the public in the
judiciary".
The minority said "We have given careful thought to the
speech and its contents as also the circumstances under
which it was made. We cannot find anything in the speech
and in its contents even remotely possible of being
interpreted as proved misbehaviour".
The minority report of this Select Committee also
considered both the constitutionality and the
desirability of (he procedure adopted by Parliament. It
said:
"An important preliminary objection was raised by
Mr. S. Nadesan, QC Senior Counsel for Mr. Samarakoon.
Briefly the point made by Mr. Nadesan, was that to
bring Standing Order 78A into the list of Standing
Orders and in seeking through this Select Committee to
Constitution of Sri Lanka was in fact being
violated.
"The point made by Mr. Nadesan, was that in the context
of a Constitution such as that of our country, in which
the separation of powers was jealously protected, this
Committee in seeking to go on with this inquiry as to
whether or not Mr. Samarakoon was guilty of "proved
misbehaviour", was violating the provisions of Article
4(c) of the Constitution which stipulates that except
in matters concerning parliamentary privileges the
judicial power of the people shall be exercised
exclusively through the courts.
"The signatories to this statement, while conceding
that Mr. Nadesan's arguments have considerable cogency
- are not in a position to come to a definite
conclusion on this matter. We would urge that H.E. the
President could refer this matter to the S.C. for an
authoritative opinion thereon - under Article 129(1) of
the Constitution.
"The signatories to this statement, however, feel
strongly that the procedure that Parliament finally
adopts should he drafted along the lines of the Indian
provisions where the process of inquiry act under
provisions of which precedes the resolution for the
removal of a Supreme Court Judge should he conducted by
Judges chosen by the Speaker from a panel appointed for
this purpose. We, therefore, urge the House to amend
Standing Order 78A accordingly".
No advisory opinion was ever sought, nor was the
Standing Order amended. Proper constitutional provision
for investigation by a judicial tribunal is one of the
matters now urged by the Civil Rights Movement in its
representations on constitutional reform.
Ten years later:
a Tribute - A.S.de Silva in Sri Lanka Ceylon Daily News,
21 December 1996
Ten years have elapsed since Nadesan passed away on
December 21, 1986. He was my teacher seventy years ago,
when as a village lad in the South, I was struggling to
get a foothold in society. I remember him with gratitude
for sponsoring my application to Dharmasoka College,
Ambalangoda to complete my secondary education. He was a
friend of the late Mr.Edgar Wijesuriya, the Principal of
Dharmasoka.
After he left the teaching profession, to pursue his
legal studies, he used to write to me from his home,
Annavasa, Annaicoddai, Manipay and inquire about my
progress. I followed his meteoric rise in the halls of
Justice where he was destined to achieve distinction as
one of the foremost defenders of civil rights in this
country.
After the insurgency in 1971, he helped to establish
the Civil Rights Movement and led a campaign against the
abuse of emergency powers and denial of human rights. His
career, both as politician and as lawyer, extended over
half a century. In 1953 he had reached the pinnacle of
the legal profession when he was appointed a Queen's
Counsel. He was a member of the Senate until it was
abolished in 1971. His contributions to the debates on
the proposal to establish the First Republican
Constitution were of great value to harmonise the
divergent views of the majority and minority communities.
He stood out of the divisive politics of those who were
calling for a separate state for the Tamils.
He was involved both as a defender and defendent in
several landmark cases. When there was a proposal to hold
a referendum to postpone elections in 1982, Ven.
Ratansara, the Secretary of the Civil Rights Movement,
published a leaflet called '"Pavidi Handa" (Voice of the
Clergy), criticising the government. When the leaflet was
seized by the police, Nadesan filed an appeal in the
Supreme Court and argued the case successfully, leading
to the conviction of the police officer and the award of
damages in a sum of Rs.10,000 payable by him. Curiously,
the government paid the sum and promoted the police
officer.
When Mrs.Bandaranaike was deprived of her civic
rights, Nadesan was in the forefront on behalf of the
Civil Rights Movement to protest against the decision of
the Government. In 1984, Mr.Neville Samarakoon, the Chief
Justice had made some remarks in a Prize Day speech
criticizing the Government. As it appeared to involve his
judicial conduct, he was arraigned before a Parliamentary
Select Committee. Nadesan appeared on behalf of the Chief
Justice and argued forcefully for the proposition that it
was an expression of free speech which is an inalienable
right.
The other was the case filed in the Supreme Court
charging Nadesan over his articles in a newspaper on
Parliamentary Privilege. He was defended by H.L.de Silva,
who successfully affirmed that Parliamentary privilege is
not for the purpose of insulating Parliament against fair
criticism.
The most endearing and enduring lesson learnt by his
pupils in school and juniors in the legal profession was
his frugal manner of living and his moderation in
spending. He reached the octagenarian span of life, and
passed away leaving a void in the ranks of those who are
now endeavouring to bridge the gulf between the two
communities. I will pay my homage to his memory by
quoting the Dhammapada:
"Some quarrellers do not
realise that in this world
We must all at some time cease to live
But there are others who do realise,
And they will settle their quarrels."
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