21st February 1999
By our Legal Correspondent
Lawyers will decide on Wednesday who will lead the Bar Association of Sri Lanka for the next two years.
Vernon P. Boteju and Upali Gooneratne are the two contenders for the prestigious post of president. The position had been held by lawyers of the calibre and eminence of H. W. Jayewardene and Nimal Senanyake who had always maintained the great traditions of the bar.
The BASL has a great impact on the people of this country, as many lawyers believe it is a vanguard organization which is committed to protect people's legal rights. Thus the election to this body is regarded as an important event in the legal calendar.
The Sunday Times sent questions to both the candidates. Having read the response of them, we would like to quote a passage from Adam Smith's Wealth of Nations: "To judge whether a workman is fit to be employed, may surely be trusted to the discretion of the employers whose interest it so much concerns. The affected anxiety of the law-giver lest they should employ an improper person, is evidently as impertinent as it is oppressive."
The following is the set of questions The Sunday Times sent to Mr. Boteju and Mr. Gooneratne:
* Q: What is your opinion about the President making public statements about judges of the Supreme Court?
* Q: As BASL president what would you do if the President or any other politician makes any derogatory remarks about the Judiciary?
* Q: What is your position about the Government refusing to interdict Bandula Wickramasinghe after the infamous episode of the alleged illegal arrest of High Court Judge Mahanama Tilakeratne?
* Q: What is your position on the stand the Attorney-General took in the arrest of judge Tilakeratne?
* Q: Do you accept that judges should be promoted on seniority if there are no disciplinary inquiries pending against them?
* Q: Do you believe that when the Chief Justice retires, the next most senior Judge should be appointed as the Chief Justice?
* Q: If the government refuses to do so, as the president of the BASL what action would you take?
* Q: In terms of the Shirani Bandaranayake judgement would you as the president of the BASL initiate action in the Supreme Court?
* Q: Do you approve lawyers demonstrating against the arrest of Mr.Tilakeratne?
* Q: What is your programme of work if you are elected as the president of BASL?
Responding to our questions, Mr. Gunaratne says:
"I have always disapproved of any mass media publication by candidates for office in the BASL in connection with their candidature. I am therefore not responding to the said questions contained in your fax, though I will be most willing to otherwise co-operate with the media.
"In regard to my proposed programme of work and other matters connected with my candidature, I will be communicating directly with the membership."
Mr. Boteju in response to our questions says:
"You have asked my opinion about the president making public statements about judges of the Supreme Court. Being a professional lawyer I am unable to express a well considered opinion without being briefed of all the facts relevant to this question. You will no doubt agree you have not done so.
"You merely say 'President.' Is it the President of the Democratic Socialist Republic of Sri Lanka, the president of the Court of Appeal or the president of the BASL or any other organizations? It is unsafe to act on presumptions without correct facts to express a legal option.
"You ask 'what action I would take if I become the president of the BASL if the President or any politician makes any derogatory remarks about the judiciary.'
"A hypothetical questions in legal parlance. That is a decision to be taken at that instance dependent on the facts and circumstances arising if I become the president'
"You ask 'what is your position about the government refusing to interdict Bandula Wickremasinghe after the infamous episode of the illegal arrest of Mahanama Tilakarathna.'
"My position is that this is not relevant to my immediate objective, and the task ahead of me is offering a program of action for the welfare of the members of the profession and the public at large."
"You ask 'what is your position on the stand the Attorney-General took in the arrest or Mr. Tilakeratne.'
"you have not briefed me with the full facts of the stand taken by the Attorney-General who according to law and judicial opinion expressed in decided cases is the fountain of criminal prosecutions and deemed to be the leader of the Bar and it would be grossly unfair to take any position without knowing the full facts of this case which is in any event now sub-judice.
"You ask 'Do you accept that Judges should be promoted on seniority if there are no disciplinary inquiries pending against them.' A double barrelled question. My opinion is that judges (Is it the minor judiciary or superior judges?) You are silent on this. Promotions of judges should be on the basis of good conduct, merit and seniority.
"You ask 'Do you accept that when the Chief Justice retires, the next senior most Judge should be appointed as the Chief Justice.
"The question is starved of facts. Why only retires, what about resignation, illness or other incapacity or refusal? Surely the present laws provide for such situations. Does my acceptance or otherwise really matter at this point of time?
"The other question related to the previous one is once again hypothetical. What action I would take is to be decided upon at the relevant time when I become the leader of the Bar as you say. Or is the leader of the Bar the Attorney-General, this is a matter that will merit my attention.
"Question number 8 as it stands now is not clear to me for reply.
" You ask 'Do you approve lawyers demonstrating against the arrest of Mr. Tilakeratne.'
"Your question relates to a specific incident, the facts of which you have not briefed me fully to enable me to evaluate the same and give a considered answer. On the other hand if the question is 'should lawyers take to the streets?' my answer will be yes and no, depending on the seriousness of the problem - and whether affecting an individual or the community at large.
"You ask 'What is your programme of work if you are elected as the President of the Bar Association. Good question and relevant. In my message to the members I have placed before them my twelve-point action plan."
Putting a check on UN's role
By thalif deen at the united nations
NEW YORK— An overwhelming majority of the UN's 185 member states— including Sri Lanka and India— jealously safeguard a sacred principle laid down in the UN Charter: the inviolable sovereignty of nation states.
India has made it clear that the United Nations should keep its collective hands off Kashmir. The Mexicans have told the UN that it has no mediating role in the Zapatista insurgency in the southern state of Chiapas.
And Sri Lanka has conveyed its own blunt message to resident representatives of UN agencies: Give us all the humanitarian assistance you can muster, but please mind your own business— and we will mind ours.
Addressing the General Assembly in September last year, President Chandrika Bandaranaike Kumaratunga paid a back-handed compliment to both South Africa and the United States "for encouraging my government to settle this problem by political means." And then she added the zinger: "I would like to add here that this is an internal problem that Sri Lanka is fully able and ready to resolve with the full support of its people."
"We will not tolerate any outside interference, whilst we appreciate all the support given to us by our friends abroad in resolving the conflict," she said, in a speech which was revised moments before she took the podium. The revisions were a direct response to comments by two preceding speakers, South African President Nelson Mandela and US President Bill Clinton.
But the sanctity of non-interference in the domestic affairs of member states is — slowly but discreetly— being challenged in the Security Council by some Western nations.
Last week the Security Council summoned a meeting, under a Canadian initiative, to focus on a single issue: "Protection of Civilians in Armed Conflict."
The Netherlands, for the first time, challenged Article 2, paragraph 7 of the UN Charter, which says that "nothing contained in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state..."
"That article should not be read in isolation," argued Ambassador Peter van Walsum of the Netherlands. After all, he said, the opening words of the UN Charter do not refer to "sovereign states" but to the "peoples" of the United Nations.
Canadian Foreign Minister Lloyd Axworthy has called for increasing UN involvement in today's civil wars because of the rising number of casualties which have almost doubled since the 1980s, to about one million a year, of which 80 percent are civilians, mostly women and children.
The UN has so far unilaterally intervened in Somalia and the truncated Yugoslavia primarily on the grounds that both countries had no legitimate governments at the time of intervention.
But most Third World diplomats say the line has to be drawn there — and the UN should go no further.
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