15th February 1998

The case of king and the donkey

By Mudliyar

President’s Counsel Romesh de Silva sum- moned a meeting of the executive commit tee of the Bar Association to discuss among other matters the appointment of attorneys-at-law as President’s Counsel by the President.

The meeting was held on Feb. 12. But after a heated debate the executive committee decided to postpone the deliberations to Feb. 24 as the committee was divided on the issue. Mr. de Silva could not be cowed down by drawing his attention to his own appointment. He said he was prepared to answer any question and held high the principle that once guidelines have been formulated and submitted, the President should strive to follow them. Mr. de Silva stressed that the President of the country was written to by the President of the Bar Association and the President had acknowledged the communication.

The only other occasion, after Mr. de Silva became the BASL President, the executive committee was summoned for an emergency meeting to discuss the conduct of Desmond Fernando P.C. on the garlanding issue.

Some members of the present executive committee were in a karmic sleep of Kumbakarna, and suddenly woke up when they heard the news that the Bar Association was meeting to discuss the recent appointments of Silks.

President Kumaratunga has chosen to ignore the request of the Bar and appointed some members who are her known supporters. The present executive committee has five Silks and many of them were not present at the meeting. some members who get elected to the executive committee refused to get involved in controversy which, according to their reckoning, might hurt some of their friends.

Lawyers who are not members of the council ask in hush hush tones whether the Government has thought that appointing PC was similar to appointing “Vibushanas”. Lawyers who live like the Arabs on dates were named by their colleagues as ‘Dina Vibushana’s’.

But when the present government appointed President’s Counsel for the first time every one remained silent. There were no emergency meetings of the executive committee. Only a few members of the Bar indirectly criticised some appointments. If those appointments were not discussed and condemned by the executive committee then one would pose the question why should there be a discussion about the present appointments. The BASL President may be hurt that the government did not consult him before making these appointments. But the present BASL President was a member of the Bar Council and did not think of making a suggestion that some of the appointments were in contravention of the basic and fundamental rule of twenty years in active practice framed by the Bar Association as guidelines in the appointment of President’s Counsel. When a member applied for silks, the only conclusion that one could arrive at is that either he did not know the date of his enrollment or he could not count twenty years from that day.

When these appointments were made, the only person who had the guts to condemn the Government on such appointments was Ranbanda Seneviratne. He was then the main speaker at a Rupavahini talk show. He was asked what his views about the appointment of President’s Counsel were.

He said that “thousands of years ago in the land of Mahabharata lived a king called ‘Dharmishta’ who heard cases of his subjects. He found that the workload was too much for him. To clear the backlog, he decided to appoint presidents to various districts so that they could have original jurisdiction and only the appeals could be directed to him. After one year the King found there were a number of appeals from all districts except one.

The king decided to summon this particular President before him, from whose district there were no petitions of appeal. He was brought before the king who wanted to know the secret how he meted out justice fair and square to all, and why there were no appeals from his Court.

The king said “I want the truth and nothing but the truth.” The president was shivering and said “My Lord the king, whenever I used to hold sessions in my court-house I used to ride on a donkey and when I take my seat the donkey would stand in front of me, and when the witness gave evidence I never listened to him but I was looking at the donkey. After the witness testified, I made a gesture to the donkey and the donkey would either flap the right or the left ear; and if the donkey flapped the right ear I knew the witness was telling the truth, and if the donkey flapped the left ear I knew the witness was lying. So it was very easy to know who lied and who had told the truth. I gave the judgment and it has always been correct and accepted by all parties. This is not due to my ingenuity but the clever advice I receive from my donkey.

The king was so rhapsodic that he immediately ordered the donkey to be brought before him. The King took his sword and placed on the right ear and the left ear of the Donkey and proclaimed “I proclaim you as my first President’s Counsel.”

Soon after the talk show, Ranbanda was removed and was prohibited from further participation at talk shows.

When the Bar Association for the first time passed a resolution requesting the President to follow the guidelines set by the Bar Council in appointing President’s Counsel, one of the reasons for this resolution was the appointment of Romesh de Silva as President’s Counsel by the government of J. R. Jayewardene. It was the view of the Bar that before being appointed as a President’s Counsel, he or she should have been in active service and continuous practice for a not less than 20 years.

It was the view of the members, especially the junior bar, that Mr. de Silva had not been in active and continuous practice for 20 years, and there were others with 20 year active and continuous practice and had reached eminence in the profession.

At that time, irrespective of personalities or other relationships the Bar was ready to express its concern on any matter devoid of politics. The Professional Affairs Committee chaired by the late Camillus Rodrigo appointed a sub-committee to go into the question of the appointment of President’s Counsel and adopted a resolution on June 24, 1989. The resolution said: “The attorney-at-law should be in active service and continuous practice as counsel for not less than 20 years. In the opinion of the chief justice, the Attorney General and the president of the Bar Association, he should have reached a position of eminence and should have maintained a high standard of conduct and professional rectitude.”

This resolution was accepted by President Premadasa. Though he did not contact the president of the Bar officially, he contacted the office bearers unofficially when he was about to appoint his nominees as President’s Counsel. One of the office bearers found out that R.K.W. Goonasekera’s name was not in the list of PCs to be appointed. When the office bearer contacted the President and expressed his concern, the President said he very much desired to appoint Mr. Goonasekera, but he did not see his application. The President told the office bearer if he could meet Mr. Goonasekera and get his application delivered to him by hand, he would revise the list. When Mr. Goonasekera was informed of this, he politely refused to apply. Later Desmond Fernando expressed the view that Mr. Goonasekera would not have applied to become a President’s Counsel, as the resolution concerning the appointments of President’s Counsel adopted by the executive committee where Mr. Goonasekera was a very respected member had it that an attorney-at-law must be in active service and continuous practice for more than 20 years. Mr. Goonasekera before he joined the profession was the principal of the Law College. He would have thought that by applying he would be flouting the very resolution he supported at the executive committee. It was known that Mr. Goonasekera was offered ‘silks’ by this Government and he declined the honour again, and has said that he would prefer to remain in the company of Dr. Colvin R. De Silva, who refused to become a Queen’s Counsel when it was offered to him by the then Chief Justice, and Elanga Wikramanayake who refused the honour when this Government offered it to him.

If the Bar Association showed the same concern and protested when this Government continued to violate the guidelines and the minimum requirements that were necessary for the appointment of President’s Counsel the Government would have been more judicious in making these appointments. But the Bar was silent and it did not have the courage or the strength of its convictions to oppose these appointments when they were made.

But it would be a matter of relief to many members who stand for principles and convictions that Romesh De Silva has decided to take an independent view and express the feeling of members who were aghast when they saw the names of some appointees. If the Bar is independent and if it stands for principles can the executive committee shirk its responsibility towards its members and the public merely because some of the members who had been appointed as silks are personal friends of some members or some members have been invited to attend a party after the ceremony.

It is far better for those members to resign from the executive committee and attend the ball to which they have been invited. Only BASL President Romesh De Silva and few members wanted to issue a statement expressing concern over the attitude of the government for not consulting the Bar Association. If the protests fail then the Bar must open a portrait gallery of those gentlemen who refused these appointments on principle.

Then the Bar Association can proudly display the portraits of Dr. Colvin R. De Silva, R.K.W. Goonasekera, Elanga Wikramanayake, and to that portrait gallery of all-time greats we could add the portraits of the PC in the executive committee who supported the stand taken by Romesh De Silva P.C. This gallery will be revered by members of the Bar Association like that of Justice Kuldeep Singh who sacrificed the post of chief justice of India due to his principles.

N.B.: The President’s Counsel who are to be appointed should note that they cannot appear at Customs inquiries or at Police Stations, as the Code of Conduct and etiquette for Silks at the Bar — approved at a meeting of the general body of silks held on January 13, 1990 at the Sri Lanka Foundation Institute chaired by the late A.H.C. De Silva, Q.C. — do not permit them to do so.

The only President’s Counsel who was appointed but did not take his oaths is Stanley Tillekeratne.

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