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"To us all towns are one, all men our kin.
Life's good comes not from others' gift, nor ill
Man's pains and pains' relief are from within.
Thus have we seen in visions of the wise !."

- Tamil Poem in Purananuru, circa 500 B.C 

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 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."


Nadesan & the Judges - Suriya Wickremasinghe, Attorney at Law, Sri Lanka Sunday Observer, January 1997 - the writer assisted Nadesan in a variety of battles in the courts over a period of 26 years. A fellow founder member of the Civil Rights Movement, she is currently its Secretary and Joint Secretary of the Nadesan Centre for Human Rights through Law. 

Introduction
Judges and the 1972 Constitution
Criminal Justice Commission and the Great Walkout
Constitutional Court and the Press Council Bill
Parliamentary privilege - the exercise of judicial power by Parliament
Daily News contempt case
The Great Lockout
Attempt to sack the Chief Justice 


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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