Judges and judgments of the past

(Excerpts from the speech mde by Ranjan Gooneratne at the launch of his book, Before Justice awakes: Birth of the jury in the Island of Ceylon)

To the Romans, Justice was a goddess whose symbols were ‘a throne that tempest could not shake, a pulse that passion could not stir, eyes that were blind to any feeling of favour or ill will and a sword that fell on the offender with equal certainty’.

Judges and lawyers from the nineteenth century were votaries of that goddess. They were blessed with the gift of grace, nobility of mind and intellectual humility.

In the early nineteenth century, we had Alexander Johnstone as our Chief Justice. He emancipated the slaves, introduced trial by jury to our country. Lord Grey in the House of Lords said, “His contribution to the advancement of the social and cultural life of the people of Ceylon has immortalized his name”.

In 1840, we had William Rough, a Sargent-at-Law, a classical scholar as our Chief Justice. He was the son-in-law of John Wilkes.

In the 1860’s, Edward Shepard Creasy was appointed the Chief Justice. He had won the most coveted prize at Eton – the Newcastle Scholarship. He was a fellow of King’s College Cambridge. In the 1890s, Winfield Bonser was appointed Chief Justice. He had got a double first in the Classical Moderations and in Literae Humaniores – better known as “Greats” – from Exeter College Oxford. Joseph Samuel Grenier is of the view that he was one of the greatest judges we had. At about the same time, Harry Dias was appointed to the Supreme Court Bench. He was the first Sinhalese Supreme Court Judge.

At the turn of the Century, C.P Layard was the Chief Justice. His claim to fame rests on the fact that he was one of twenty-six children. His father, in a letter to the priest who officiated at their wedding, says “Our union has been blessed with much happiness and been the most unexampled success attending the purpose for which the rite was established – to increase and multiply”.

In the pantheon of judges we had in the twentieth century, there was Anton Bertram. He had got a First in Classics from Glanville and Caius College Cambridge. He was President of the Cambridge Union. His judgments are marked by deep learning and cogent reasoning. Then there was Thomas Sampayo. He had won the Government Scholarship from the Colombo Academy and entered Clare College Cambridge. It is said that his profound erudition, strengthened by a virile common sense, gave him an intellectual distinction.

In the 1930’s, Philip MacDonald was appointed Chief Justice. He had got a First in history from Brasenose College Oxford, He was also President of the Oxford Union. There is a photograph in the Oxford Union when he became President. Seated on either side of him, one finds two future Lord Chancellors of England: F.E. Smith, better known as Lord Birkenhead, and John Simon.

Justice MacDonald and two other judges heard the contempt case in a charge leveled against Francis Molamure.

Molamure, as executor of his uncle’s Last Will, was allowed to withdraw twenty thousand rupees as his expenses, He withdrew fifty thousand rupees. He was found guilty of contempt of court and sentenced to a term of six months’ imprisonment. On his release from jail, he ran away with Mrs. Aserappa. For his sins, he was rewarded with a Knighthood few years later.

Sydney Abrahams succeeded him as Chief Justice. He was another Cambridge man from Emmanuel College. He delivered the judgment in the Bracegirdle case. He held that the Articles of the Magna Carta were applicable to the far-flung colonies of the British Empire, in particular Article 40, which stated that every man is entitled to justice and held that the Governor had no absolute power over his subjects.

Herbert Hulugalle was charged for contempt of court for publishing an article under the heading “Justice on Holiday.” Like Ranjan Ramanayake in recent times, both were found guilty of contempt of court. Ranjan Ramanayake was sentenced to a four-year term of imprisonment, while Hulugulle was sentenced to term of imprisonment till the rising of court. Being a lawyer, he served his term seated with the lawyers at the Bar table and walked out of Hulftsdorp as a free man, as soon as the court adjourned for the day.

In the forties and fifties, among the great judges were Justice Soertsz, Sir Arthur Wijewardena, Justice Noel Gratien and Sir Alan Rose. In a tribute to Justice Soertsz , Justice Gratien said, “The years 1932 to 1938 were illuminated by the lucidity of his charges to the jury at the Assizes and the erudition expressed in the judgments he delivered in the Supreme Court. In recent times, his clarity of thought and expression found no parallel in our courts but for one exception, who is still in practice in our courts.

Sir Alan was the last of the English judges. B.P. Pieris, in his Memoirs, says, “He and his daughter together with Sir Alan went by train to Hikkaduwa. They travelled in a third-class compartment, There, they played cricket with the villagers. After the game, he gifted the bats and ball to the villagers and came back in the Buick that followed him.

The greatness of these judges lay in their simplicity. In fact, they were greater than the office they held.”

The advocates of this period were in direct line of succession to the leading advocates in the early twentieth century – Fredrick Dornhorst , B.W. Bawa, A. St. V. Jayewardena and H.J.C. Pereira. They had a mastery of the law and were relentless in the pursuit of justice. Their facility and felicity of the English language showed that they were the products of cultured minds.

The finest hour in our judicial history came with the order delivered by Justice T.S. Fernando in Liyanage vs the Queen. In the order delivered by Justice Fernando, he said, “the appointment of judges is an exercise of judicial power”. Then Minister of Justice, Sam P.C. Fernando, had appointed three distinguished judges of the Supreme Court to hear the coup trial. In the order, Justice Fernando said, ‘the appointment of judges is an exercise of judicial power. The Minister had no power to exercise judicial power. Therefore, they disqualified themselves from hearing the coup trial’.

This order not only established the independence of the judiciary, but also the distinction between judicial and executive power, which is the bedrock of Democratic Governments

In the 1970’s the legal landscape changed drastically. First, there was the appointment of an acolyte of the Minister to the Supreme Court. Then a person who prostrated himself before the then President. He was elevated to the Supreme Court Bench, not for his erudition, but for his servility. Justice R.F. Dias, in his judgment in the Udurawana vs the Public Trustee, says this is the traditional form of worship by Sinhalese of lowly status to express their servility to their masters.

The judges themselves, by their acts and omissions, destroyed the Majesty of the law.

This process of destroying the majesty of the law was resorted to by external forces. In 1983, there was an attack on the judges’ houses. This attack was orchestrated by Cyril Mathew, then the right-hand man of the President. This attack was led by a man called Kalu Lucky. An attesting witness at his wedding is today the President of our country.

Never will we see advocates like Charles Ambrose Lorenz, H.V. Perera or judges like Anton Bertram or Francis Soertsz walking the corridors of Hulftsdorp.

The Ciceronian phrase “O tempora O mores” cannot explain the collapse of the Majesty of the law.

However, there is a glimmer of hope – so long as judges like Justice Nawaz are in the Supreme Court. In his judgments, all the relevant legal concepts are analyzed and due heed is given to counsel’s submissions. He belongs to an elite band of judges. No ghost writers are allowed to enter his chambers.

The pursuit of justice in our courts need not be an illusion, so long as distinguished judges like Justice Nawaz continue to guide the fortunes of our profession. Such leaders provide hope that the people of our country will always be able to say, “Fiat Justitia Ruat Caelum – “Even if the heavens break asunder – let there be justice”.