The Sunday TimesNews/Comment

09th, March 1996



'We will not permit the politicians to mess around with our profession'

Never in the history of the Bar Association has an election been fought on political lines. The Bar was divided between those who were supporting the PA and approving the party interfering with the affairs of the Bar and those, including a large number of PA supporters, who cherished the independence of the Bar more than anything else. The latter believe that the Bar is an independent entity, independent of any political colouring or bias.

The SLFP Lawyers' Association, after the defeat of A. K. Premadasa and Mahinda Ralapanawa, issued a statement saying that it did not espouse the cause of any candidate. The same SLFP Lawyers' Association last year did something equally surprising.

Dr. Jayatissa de Costa was one of the candidates. It was well known that Dr. Jayatissa de Costa was a member of the SLFP Lawyers' Association. Though the campaign was not so politicised as this year, there were groups who were canvassing votes in favour of Dr. Jayatissa de Costa, on the basis that he was the PA candidate. Dr. Jayatissa de Costa to his credit did not try to discount the rumour. It was never a major campaign issue.

In fact no one, not even his closest confidante and/or the juniors of N.R.M. Daluwatte, knew what political party Mr. Daluwatte belonged. Others thought that by nature Mr. Daluwatte was an apolitical person.

Then came the surprise. The "Daily News" carried a news item to the effect that the PA or the SLFP was not sponsoring or supporting any candidate for the BASL presidency. What effect it had on the election of Mr. Daluwatte as the President, is difficult to say.

This year, when the Mr. Premadasa and Mr. Ralapanawa were routed at the polls, before this debacle took place, the SLFP Lawyers' Association did not think it fit to make the same announcement, as last year and insist that there were no candidates sponsored by the PA or the SLFP Lawyers' Association. We have with us a letter, purportedly to have been written by Anil Obeysekera, P.C., the Chairman of the SLFP Lawyers' Association, to selected members of the SLFP who are political organisers of the party, informing them that Mr. Premadasa and Mr. Ralapanawa are the two candidates of the party and requesting them to support their candidature.

Mr. Obeysekera has denied that this letter was sent by him. We accept his denial. We believe that not only his signature but also the letterhead are a crude fabrication. We do not think Mr. Obeysekera, who is the Chairman of the Petroleum Corporation would have his letterhead printed with the words "President's Counsel" spelt as "President's Counsel". It is indeed a crude forgery. The existence of this letter was known to many long before the election.

No one denied it, and SLFP Lawyers' Association Secretary Percy Wickremasekera did not think it was necessary to issue a press release. Then the meeting of the SLFP Lawyers' Association was reported verbatim in many Sinhala and English Sunday papers. It was obvious to any reader with even a modicum of intelligence whom the SLFP lawyers were supporting for the presidency and the secretaryship of the BASL. There was no official communication to deny this position.

Why didn't the Association follow the healthy precedent that was established the previous year? As contended by Percy Wickremasekera, W. Dayaratna is a member of the SLFP Lawyers' Association. Most members and specially those who worked tirelessly for Mr. Dayaratna knew about this.

They also knew that when the resolution to condemn the statement made by President Kumaratunga and later the appointment of Dr. Shiranee Bandaranayake were discussed, Mr. Dayaratna was totally opposed to the disruption of the meeting.

Before the resolution to condemn the appointment of Dr. Shiranee Bandaranayake was discussed, some members challenged whether the minutes were in order. When it was put to the vote, Mr. Dayaratna voted in favour of adopting the minutes with a loud "yes". When the so-called 'Pal kavi' lawyers including some members who were absent on the previous day voted for the rejection of the minutes, every one knew whom the "Pal kavi" lawyers were supporting. They knew which political party or which section of a political party was supporting the "Pal kavi" lawyers.

The members simply out voted them. They knew that their political preferences or their candidate's political views had nothing at all to do with the BASL elections. Irrespective of political considerations they voted against the organisation that was operating to defeat the discussion of any resolution that the "Godfathers" of the organisations thought was anti-government.

The members resolved to defeat this small but verbose clique once and for all. This the members achieved, soundly defeating any candidate they thought were supportive of these disruptive elements. Mr. Dayaratna was supported by a large number of members both aligned to the PA and to the UNP and other independent members who were not politically aligned. "We will not permit the politicians to mess around with our profession, judges and our independence" was their resolve.

From the inception of the Bar Association of Sri Lanka, no president in the past had got so much publicity as Romesh de Silva got after his election. Most elections of the BASL were private affairs where the members of the public had little or no interest in it. Only a few resolutions where there is public interest were given media coverage. The new President elect got unprecedented media coverage due to the very unusual conditions under which the elections were held.

The freedom which is fundamental to any democratic tradition, the freedom to express an opinion, has been subjected to attack. The power that is governing has shown scant respect for any divergent views. The suppression or muzzling of such ideas has been done with the approval of those who are in power. Gradually the champions of liberty, freedom and democracy in the opposition were reacting worse than those who when in power were accused of being opposed to these much cherished freedom.

For the first time last year, a scenario which has now become the life style of politics in this country, that is to prevent by the use of any method the holding of meetings opposing the views of those in power, crept in to the Bar Association. A small group of lawyers were preventing discussions at meetings of lawyers, who make their living by their forensic ability to debate and to convince judges of their point of view were prevented from expressing their views.

A Sinhala newspaper described this incident as a sad spectacle that baptised the "Kehelwatte tradition" by the 'Pal kavi' lawyers.

All lawyers by their training and the traditions they have cultivated for a number of years have become in their own reckoning champions of progress and liberty. The freedom of speech and free discussion were the essence of their spirit. The oft-quoted sentence of Voltaire, "I may not agree with a word you say, but I shall defend to the death your right to say it" was their manifesto.

This message of political interference was brought to the notice of nearly 5000 members all over the island by the newspapers which paid much attention to the most unusual things that were happening in the Association. When the members voted freely to uphold their much cherished traditions of the Bar, the media took notice of it..

Romesh De Silva, as he confessed to the media, was not the most popular man in Hulftsdorp. But he became the vehicle on which the free independent lawyers from all political shades rode to victory.

The "Lakbima", a very popular independent paper edited by Bandula Padmakumara, in its weekly column "Sameepa Rupa" said, "the best thing that has happened for the last few years in this country was the election of Romesh de Silva to the presidency of the BASL." I believe most of those in the media who had been subjected to various harassments by the government may have thought that the election of Mr. De Silva would send the correct signals to the government.

Just before he even assumed his office, there is a controversy about the statement Minister Peiris made with regard to the conduct of the Fort Magistrate. One of the main failings of the previous administration under Mr. Daluwatte was that the Executive Committee did not on its own motion pass resolutions when the independence of the judiciary and the Bar was threatened.

When President Kumaratunga made uncomplimentary remarks about one of the more respected judges of the Supreme Court, Justice Mark Fernando, persons who cherish the independence of the Bar would have realised that this statement ought to be condemned unequivocally. It is the responsibility of the president of the Bar to take upon himself to express the solidarity of the Bar and move a resolution before the council.

As the president and the Executive Committee failed in its responsibility, two other ministers went over the state television and added insult to injury by making accusations against the judges of the Supreme Court. Shortly afterwards and before the judgement in Dr. Shiranee Bandaranayake case Justice Minister made certain remarks to the 'Divaina' paper. No action was taken by the Bar.

The officials of the Bar became mere spectators of politicians seeking to exculpate themselves of their inability to govern and blaming the Supreme Court for not permitting them execute their political revenge on the people of this country.

When the opposition became inactive and was in a deep repose the rights of the people were protected only by the intervention of the Supreme Court. The Executive Committee of the Bar never did anything on their own to prevent this situation. If some members of the Bar on their own did not bring these matters to the notice of the BASL by way of a resolution, we may have had scenes of politicians with their cohorts, henchmen and others parading in front of our courts, and scenes on our television where supporters are interviewed and freely expressing their opinion against the judges and politicians requesting the people to take actions against those who are guilty.

A fiasco of people demonstrating and politicians exhorting them to do the same may have been first enacted in Hulftsdorp. Therefore, we believe that Romesh de Sivla as the leader of the unofficial Bar would take upon himself the responsibility of examining statements made by politicians in relation to any matter concerning the independence of the Bar and the Judiciary.

Mr. De Silva has spoken glowingly to one of his many interviewers about the period in which H.L. De Silva was the President. H.L. De Silva became the President during the beginning of the most turbulent times of our history. Mr. De Silva was never a member of any one of the past Executive Committees and he may have overlooked another period in which the most significant contributions made by the BASL towards the oppressed people of this country was the establishment of the legal aid centre of the BASL for Fundamental Rights Application.

The Canadian High Commission granted financial assistance of Rs. 985,000 for the establishment of the centre.

The Supreme Court, under the former Chief Justice Parinda Ranasinghe, opened files on mere letters sent to it by detenues at various camps that their fundamental rights have been violated as they have been incarcerated for a number of years without trial.

The Supreme Court entertained these applications and directed them to the BASL to file papers in order that the Supreme Court should be able to make a proper and just order. This was a time when the judges were threatened not by politicians in power but by various other agencies which had taken upon themselves the crusade against terrorists. Any lawyer or a group of lawyers to present Habeas Corpus application in court were the receivers of death threats.

The BASL effectively demonstrated that threats or killing of lawyers did not deter the legal community from performing its duties. Justice Amarasinghe in one of his judgements referred to a threat received by the Supreme Court and said, "Every private communication to a judge for the purpose of influencing his decision upon a matter publicly before him is necessarily calculated to divert the course of justice and deserves the reproof and censure as a contempt of court. If we are to do what men and women of goodwill who respect the rule of law want us to do, the power they have vested in us to ensure that we their judges are free from peril and foul horror, real or pretended, express or veiled, ought to be effectively exercised."

When the country became a veritable killing field and no lawyer was willing to appear in cases involving Habeas Corpus applications the Bar unanimously adopted the following resolution to establish a Human Rights Centre to entertain any complaint of violation of human rights from any citizen of Sri Lanka:

"The Writ of Habeas Corpus is the foundation of one of the most fundamental liberties of every human being. The Courts in this country have jealously guarded this Writ from time to time. The Courts in this country have jealously guarded this Writ from time to time. The availability of the Writ is a basic right in a civilised society. Constitutional and other statutory protections of the Writ will be important unless Attorneys-at-Law are willingly available for those who seek redress by way of such a Writ.

"The Human Rights Committee of the Bar Association of Sri Lanka views with grave concern recent events in the country which have in no uncertain terms made inroads to the independence of the Bar willingly available for those who seek redress against arbitrary arrest and detention.

"We fully and unequivocally commit ourselves to uphold the independence of the Bar against all direct and indirect threats which seek to take away the right of every citizen to agitate the cause against the deprivation of personal liberties.

"We therefore move that:

(a) The BASL complies a representative panel of Attorneys-at-Law from all over the Island who are willing to give legal assistance to families of persons who have been taken into custody or detained for apparently no reason in order to secure their release.

(b) All Attorneys-at-Law should provide free legal assistance where necessary to families of persons who have been taken into custody or detained for apparently no reason in order to secure their release.

(c) If so requested, the Association gives all possible assistance and support to any Attorney-at-Law to overcome threats designed or intended to dissuade such Attorney-at-Law from providing legal assistance to families of persons who have been taken into custody or detained for apparently no reason in order to secure their release.

(d) The BASL establishes Human Rights Centre at BASL headquarters to entertain any complaint of violation of Human Rights from any citizen of Sri Lanka and to take action thereon."

The establishment of the Human Rights Centre at the BASL headquarters with the initial assistance from Amnesty International incurred the wrath of many politicians in power.

The Bar paid scant respect for these persons and the notice was published requesting to send in writing of any complaints of violations; There were more than five thousand letters received within a short time. There are politicians who mistakenly believe that the Bar was silent when these atrocities were committed.

No. It was the politicians who are now accusing the Bar of being silent then, who went into deep dormancy and the others who left the country seeking safer heavens, when the lawyers fought the violations with resolve and courage unknown to those accusers. The Australian Bar wrote to the BASL and said, "Australian lawyers might spare a thought for the difficulties under which their legal colleagues in Sri Lanka have worked in recent times."

Judiciary-the future

"Every Judge has to search within himself"

Excerpts from the speech by Justice C.V. Wigneswaran, Judge of the Court of Appeal, at the National Law Conference.

What should be the future for the Judiciary in Sri Lanka? We must remember that nothing has so deeply agitated the mind of political thinkers and social thinkers throughout the world than the problem of safeguarding the freedom of man from the absolutism of the State.

Different mechanisms over the centuries have been suggested. Perhaps one of the great creations made by them is the theory of separation of powers and the checks and balances. But it is not the theory and the constitutions that matter. The political culture of a country has more to do with the application of the theory than the theory itself. In practice the story of every Judiciary has always been a story of struggles, particularly with the Executive.

Proponents of the concentration of power of the State argue that if the power is being used for the good of the country why divide it but let it remain with one of the organs. Proponents of separation of powers ask who is the judge of what is power for good and what is power for evil. This debate may go on.

Yet it must be remembered that the Judiciary depends upon the Legislature for the financial resources and the necessary statutes, and upon the Executive for the execution of judgments and other logistic supports. In turn the Judiciary examines the validity of laws made by the Legislature (at least initially in Sri Lanka before it becomes Law), determines disputes relating to election, composition or dissolution of the Parliament and in Sri Lanka the election of the Executive Head too.

Exercise of powers by the Executive, exercise of its discretion are interfered by the jurisdiction given to the Courts. Therefore there is interdependence between these organs of State who all claim to work for the common good.

Any attempt to make the Judiciary subservient to the other two organs or allow those organs to indirectly influence it through appointments, economic sops or rewards etc. would most certainly affect the smooth working of the State mechanism.

So long as there is increasing distrust among the people towards their elected representatives, so long as the concept of popular sovereignty reigns in the hearts of men, so long as the supremacy of the Constitution is popularly accepted, the powers given to various organs of State under the Constitution would be minutely scrutinized.

It is only the Judiciary that could act as the watchdog of the People's rights. No member of the Judiciary should therefore forget the heavy responsibility cast on him or her.

In practical terms, Judiciary itself must therefore re-examine its attitude and perceptions. Every Judge has to search within himself and identify the processes that work within him or her when he or she makes a Judicial decision. The future depends on our capacity to self analyse and assess our degree of perceptively and objectivity.

On one side we have the proponents of judicial conservatism like Lord Devlin who argue that judges are not fitted for a creative dynamic law-making role.

They argue that judges should not try to become social reformers or become professionally concerned with social justice. But in recent times Justice Bhagawati and Justice V. R. Krishna Iyer from India have very enthusiastically supported judicial activism realising the peculiarities of the Asian social milieu.

With such varied attitudes identified, self analysis on the part of judges could do a lot of good for the future of the judiciary. In theory, judges must put aside not only their own views but also what they know or suspect might be the wider practical consequences of their decisions.

But in practice on the one hand by their own inclinations and because of the status of the Judiciary as part of the authority within the State they may tend to make conservative decisions which support the existing order as they see it. This may be more so if the judges were hand-picked from Departments very close to the Executive.

On the other hand there could be a heavy anti-establishment attitude shown by some other judges depending on their conditioning and perceptions. It is therefore essential that judges become aware of the forces that work within them when they decide cases. Today judges are becoming more and more aware of the social, political and administrative circumstances that form the backdrop to any case before them.

They are also much more conscious of public opinion on particular issues and although they must not formulate their decisions to conform to public opinion, judges admit these have some effect on their minds. Many judges try to avoid hearing so-called controversial cases to keep their hides intact so to say not wanting any adverse consequences personal to them to arise.

This may be due to the Executive related power base hanging like the Sword of the Damocles in the background. Whatever be their attitude foremost in the minds of the Judges should be the respective rights of parties before them. Justice within tangled conflicting interests cannot depend on archaic thoughts or standards.

A just determination during Roman times may have accepted slavery as right. Not so in the 20th century. Rights of women may have been amusing fancy stories couple of centuries ago in certain countries. Not so in the 20th century.

Let us not forget that the next decade takes us into a new century -the 21 st century.

In the new century we could foresee the creation and flourishing of more understanding Judiciary - a Judiciary which sheds its slothfulness, pride and pompousness but works with a firm sense of duty knowing its importance in the proper functioning of society .They would be preparing themselves for the technological advances that are fast catching upon us and at the same time evince their desire to act with a heart towards fellow beings rather than only with their head.

The judge of the future in Sri Lanka to my mind would be trilingual, empathetic but firm, wholistic because we are fast becoming Global in outlook, duty conscious, multi-disciplined and would be undeterred by external arm twistings.

Finally let me say that it is time a concerted effort is made by the Bench and the Bar to erase off the backlog of cases presently hindering our progress. It is a shame that we carry this burden year in and year out.

As far as the Appeal Court goes an increase in its cadre, a division of the cases into new and old with newer cases being handled by one set of judges with proper monitoring in order that backlog is avoided for the future, while another set of judges hearing and finishing the old cases might be an answer to erase off the backlog by the dawn of the 21 st century.

The Chief Justice of India told us recently at a conference in Dakha in Bangladesh that they have been able to wipe off all the arrears which had stagnated for a long period of time by the sheer will, determination and grit of the Supreme Court judges and the sympathetic Bar of that country.

No problem is too complicated to be solved. But we must have the will and the skill to solve them. Let us hope, Ladies and Gentlemen, with the help of the Bar, the Bench of this country would soon have a clean slate of new cases only, to be handled in the 21st century .

The Bench and the Bar of this country are no doubt capable of doing so and they owe it to the suffering litigants.

Continue to the News/Comment page 4 - * "Bar President should demonstrate the independence of the Association ", * NATO enlargement: fire one , * Flirting with 1931 ex-co system

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