Sunday Times 2
Confronting the legal fraternity: There’s a price to be paid
It is a well-known fact that a majority of the members of the legal profession are up in arms against the Government. This was clearly shown when the profession rallied round the Executive Committee, which decided unanimously to oppose the impeachment of Chief Justice 43 Shirani Bandaranayake. This motion was supported at a meeting of the entire Bar Association, assembled in Hulftsdorp. This was a unique and historic event.
Wijedasa Liyanarachchi
A similar situation arose after the killing of Wijedasa Liyanaarachchi in 1989. The Bar adopted a resolution, tabled by the Colombo Lawyers, restraining any lawyer from appearing for any police officer, for or against, in any forum. The resolution was adopted at a meeting of the entire membership of the Bar, held at the lawyers’ room at Hulftsdorp. Ranbanda Seneviratne, who was leading the protest against the then Government, wanted BASL President H. L. de Silva PC, to take a vote on whether or not the Bar should participate in the ceremonial opening of the Superior Courts complex built with a grant from China. The consensus was that the Bar should boycott the ceremony.
The present generation of lawyers and others should note that it was not a mere opening of a building. Those days even though there were hotels like Hilton, Colombo was a dying city with dilapidated buildings, pot-holed roads and crumbling old structures and old jalopies. Then, H. W. Jayewardene, President Emeritus, of the Bar Association, requested his brother, the President of the country, J. R. Jayewardene to apportion the grant given by the Chinese to develop the Courts Complex, including the entirety of Hulftsdorp. The enthusiasm with which Dr. Jayewardene involved himself in the development of the Court Complex had never been emulated by anyone in the Bar before or after his death. When the Courts Complex evolved out of a virtual shanty town, the new Superior Courts Complex was the cynosure of all eyes. It was a landmark building of Colombo. Dr. Jayewardene was pleased that his efforts were not in vain. It was Dr. Jayewardene’s initiative to amalgamate the two societies, which represented professional bodies, The Law Society of Sri Lanka and the Bar Council, of the Proctors and Advocates respectively, into one giant professional organisation, the Bar Association of Sri Lanka. He once stated the scroll of parchment conferring upon him the honour ‘Honoris Causa’ by the Bar Association, in recognition of the yeoman services rendered by him to the Legal Profession, was more dearer to him than the conferment of ‘silk’ by the Chief Justice.
File pic: Lawyers rallying around CJ 43 Shirani Bandaranayake as she faced the impeachment process in parliament
It is also important to recollect that after Nimal Senanayake PC, completed his term of office at the Bar Association, the members wanted a lawyer who had the backing of Prime Minister Premadasa to contest for the post of president of the Bar Association. It was Dr. H. W. Jayewardene, who strongly felt that no political appendage should sit on the chair of the president of the Bar Association and after having requested many senior members to contest, and having failed to obtain their consent he personally went and met H. L. de Silva and requested him to save the Bar Association from politics and pleaded with him to contest. The opponent was a Sinhala Scholar, journalist and a lecturer at Law College. H. L. de Silva decided to enter the fray with much trepidation and won the election with the support of Dr. Jayewardene.
The decision to boycott the opening of the Supreme Courts Complex — the most important court structure built after the Dutch built Courts in Hulftsdorp – was taken when the entire membership had been invited to attend the ceremony. Dr. Jayewardene was disturbed that the Bar could even consider such a resolution which had nothing to do with the killing of Wijedasa Liyanaarchchi. He impressed upon them that even the resolution by the Bar Association, not to appear for the police officers, was contrary to the Bar’s noble principles which say that the Bar should, irrespective of any political shadows, respect and uphold the human rights of a person and the right to retain and be defended by a lawyer of his choice, which was a right guaranteed by the Constitution. He said the Bar was violating the Supreme Law of this land when it decided not to appear for any police officer until those responsible for the killing of Liyanaarachchi were apprehended.
Yet, he impressed upon H. L. de Silva that the ceremonial opening of the Superior Courts Complex was an event that would take place once in a century and the Bar should not heed to the vociferous minority who had brought in an element of radicalism to the Bar Association. “You, as the President and a President’s Counsel should be in a position to give leadership and guide the membership to uphold the virtues of the Constitution and salient provisions of the Constitution of the country and the Bar Association by directing them not to bring such a resolution,” he said. The invitation cards had been printed and Mr. H.L. de Silva was one of the keynote speakers at this important ceremony.
So, at this most important meeting, both resolutions were tabled. 1) not to appear for police, until the killers of Wijedasa Liyanaarachchci were apprehended and 2) not to participate at the ceremonial opening of the New Superior Courts Complex. The lawyers’ room at Hulftsdorp was overflowing with lawyers and the crowd was seen even in the corridors. The resolution was tabled and almost all speakers spoke in favour of the resolution except A.H. Amith who was booed by the vociferous crowd.
When the voting was to begin, Ranbanda Seneviratne suggested that the Bar must identify those who supported the killing of Wijedasa Liyanaarachchi and the voting should be by counting the persons and in order to achieve a correct count, those who favour the resolution should walk out of the door, to the right of President’s chair, and those who oppose should walk out from the left door. The first to walk out was K. N. Choksy, PC, who subsequently defended President Premadasa in his election petition case. The whole house exploded with cheer. There were none to walk out from the other door. After sometime, Ben Eliyathamby, PC, a man who always stood for his commitment to the Rule of Law, walked out from the left door. Then H.L. de Silva stood up and said as long as he was the President of the Bar Association he would maintain and uphold the voice of the Bar and would not attend the Ceremonial Opening. Dr. H.W. Jayewardene resigned from the Bar Association and returned the scroll that honoured him with ‘Honouris Causa”
Later, the majority of the members of the Bar, who were extremely unhappy with the then UNP Government, for tolerating and protecting the forces who had killed thousands of people and some members of the legal fraternity, at the next Presidential Election, worked tirelessly to defeat the regime. The same members worked in unison to support J. R. Jayewardene when his main election slogan was to establish a righteous society as against the blue collar dictatorship of Felix Dias Bandaranaike who was keen on destabilising the legal profession.
So, it is my view that if you learn a lesson from history, you must never offend the Bar and the principles that the Bar Association has stood for over the years. The Bar has consistently struggled to maintain the rule of law and the independence of the judiciary. Since without an independent judiciary the Bar cannot exist, no one should get offended when the Bar strives to maintain its independence. People like Felix Dias, who thought their regime would never be defeated and others, who indirectly interfered with the judiciary, did learn their lessons under bitter and stringent circumstances.
(The writer is a senior attorney at law)