24th, November 1996

This is a modern Absurd drama. The writer has taken a cue from Ionesco and Pirandello.

When the play opens the stage is bare. There are four chairs and a table and on top of it a microphone.

Enter a bald headed gentleman with some books in hand, wearing a dirty looking shirt and baggy trousers. He occupies one of the chairs in the middle. Another gentleman like the mythical King Kong walks and sits next to him. 'Sunil Alva' who looks quite ordinary walks in and sits next to King Kong Preme. One seat is vacant, the seat is to be occupied by a man in charge of Bills. But recently he has taken over the running of the Bar and is trying to kick every one around. He is present in the auditorium. Some actors are on the stage and others are in the auditorium, shouting slogans.

Chairman Dalla:- I call this meeting to order.

Group of actors in the auditorium:- "Ado Hoo".

Chairman Dalla:- We are assembled here to discuss a very important matter. The appointment of one of our Supreme Managers.

Group of actors in the auditorium:- "Ado Hoo".

Ham Abey:- I rise to a point of order. No one can discuss this appointment made by Ms. Chabakka our President of the Company. Who are we to tell her whom to appoint and not to appoint. She had very little to chose from. She asked me. She asked Aloy Rat, she asked Plane Nihal, we said no. After all we are too old to become Supreme Managers. I will have to retire soon. After becoming a Supreme Manager and after retirement I can't do my private distilling. So I said, No. Plane Nihal had other excuses. He is young. But he did not want to embarrass other Supreme Managers. Hence the new appointee who is nice, and grateful and when taking the oath, never forgot Pottoni Sir and Bola Bala, saying thank you sir. We have seen others doing the same. Some have a very morose look. All of you are jealous, no? This is a plot by the other green club to discredit Ms. Chabakka. If there is a motion it must be defeated.

Group of actors in the auditorium:- 'Jayawewa'. Ape 'WPC, ta 'Jayawewa".

Gonthilla:- (In Sinhalese):- "We are governed not only by our rules but also the rules of the entire company. Our company rules do not permit us to discuss the appointment of our Supreme Managers. Last time also the green club brought a resolution when 'Chabakka blackguarded the present Supreme Managers. We disrupted the meeting. We will not allow any one to condemn what our 'Chabakka' says about her managers, even when she shoots of her mouth. We have to defend her. This time they say they cannot appoint a Supreme Manager, because it is unfair by the Junior Appeal Managers who are about to be promoted. Nonsense, Anyhow we cannot discuss these appointments. No way. 'Bola Bala' promised to appoint me, as a Manager of the High Bar. I refused. If I can disrupt this meeting, then I want to go as a Manager of the Appeal Bar."

Group of actors in the auditorium:- "Jayawewa, ape 'gonata' Jayawewa"

King Kelani Tissa:- We are members of the nobility. Our profession of keeping bars is regarded, after the oldest profession, the profession of the nobles. Behave! We can discuss and find out whether 'Chabakka' made a mistake or not. Whether we as bar keepers have a duty to look after the Managers and the clients who come to us for the correct measure. They must have faith in us.

We will not give short measure. And our arrack should not be diluted the way 'Chabakka' wants it.

Group of actors in the auditorium:- Ado Hoo! Menna bath gotteck, throw him out. He thinks he is a big gun. Get down, Ado Hoo,

Mr. Waana Madu:- (In Sinhala) Ane, how wrong it is to criticize our 'Chabakka's' appointment.

Big 'P' Sunda:- 'Talk in English. I cannot understand what you are saying".

Mr. Waana Madu:- I do not know English. I have gone to Bar Keepers School and graduated. Do you expect me to know English. These Bar fellows are ungrateful. When my grandfather's sister died no one came from the bar to attend the funeral. But 'Chabakka' send me a telegram. Now our canteen is closed. This chairman has not been able to appoint even a canteen manager. He is permitting these green blokes to criticize, when a person is appointed as a Supreme Manager. After all greens have several Supreme Managers who think like them. They are favoring them. So 'Chabakka' listened to the 'Potteni Sir' and acted. We can't discuss this.

There are far more important things to discuss like having a canteen which sell tea at cost, attending funerals of our relatives.

Spectator: He is crying. If the meeting is disrupted. He will get promoted as a manager of the High Bar.

Kandy Jaye: Pointing his finger at the Chairman, Egg head we want a ruling not a vote. Only a ruling. Rule that we cannot debate the appointment. Rule! Not Vote! Rule! No vote!

Ham Abey: (In whisper) If this man rules we cannot debate, then we have won and we light crackers. If he rules we can debate. It is against the Bar rules. Still we have won, we walk out and say the ruling is unconstitutional. Because, actually he cannot rule he must get a vote. Under no circumstances we must allow a vote. Then we will definitely lose.

Canada Lamissi:- (Screaming) We want a ruling. Otherwise I will bring a coffin like the last time, and get you to sleep in it.

Long John Jed: This meeting is convened according to our Rules. We have discussed such appointments when 'Kola Kotiya appointed Appeal Managers, and Supreme Managers. We discussed and condemned it. It is perfectly legal and constitutional to discuss such an appointment, even if my brother tells me, I will not sacrifice my principles, we must take a vote.

Chairman: (Finally collecting his wits) The Bar Rules are clear. We must take a vote on whether we can debate or not.

At this stage Old Preme gets on to the stage with loud mouthed F'do helping him.

Old Preme: You can't have a vote. No vote! Rule that we cannot debate!

Spectator: "Nakiya Bahapan. Go to your Bank and manage your rent and no way can you eject our Dalla!"

Preme to loud mouthed F'do: See they are cheering me, what a nice feeling. Must tell my people when I go home.

Chairman: Those who are in favor of debating the appointment please raise your hands.

Chairman: (To Long John Jed) Only one hand please:- All the spectators raise their hands except the few actors in front of the stage.

Those who are against only two.

Chairman:- What about those rascals who are shouting at me.

Mr. Sunil Alva:- They are confused. They came straight from the Oberoi and are still drunk.

The noisy group suddenly finds out that they have lost the vote and something is wrong. They all start singing "Pal Kavi." With Canada Lamissi dancing. "Tike Wenna Nala Konde Kadala.

Communist Sira and Vale Ratna quickly get on to the stage and propose and second four resolutions. At this stage Chairman walks away. Some one tears the Bar Rules and Kalu Silva picks up the pieces and eats them. A congressman from Kalmunai removes the mike and the cord and pockets it.

The King Kong Preme takes over the chair and adjourns the meeting. The spectators walk away. "Lal hit by Mahindasome", "Middle Stick," "Doctor Josha", "Sudu Abey" with "Walpanawa" and "Screaming Edda" adjourns to SSC to discuss how to distribute the awards for disrupting the meeting over a bottle of Pol Arakku.

While lady professor catapults to the Highest Bench

The clouds of controversy that gathered over Hulftsdorp this month show no signs of dispersing. The forecast remains one of stormy skies around the Hill. But while the legal fraternity and the public debate the pros and cons of the Shiranee Bandaranayake issue that has evoked much debate, other less publicized matters go unnoticed.

The facts in the Shiranee Bandaranayake issue need little elaboration having spawned reams of newsprint these past two weeks. The meteoric rise, or the way in which the 38-year-old law professor plucked from the groves of academe has been propelled into the highest court in the land has been controversial in the eyes of many. That she is a woman and a youthful one at that, has been part of the debate surrounding her appointment to the august ranks of the Supreme Court bench. The gender issue has been hotly debated with some viewing her appointment as a promising prospect for the many women who make a career in law. But what of other women in the judiciary?

The name of Ms. Mallika Prematilleke may not ring many bells, at least to the public. The career of this long serving judicial officer is in sharp contrast to Professor Bandaranayake's headline grabbing progress. Ms. Prematilleke, the first woman Law College lecturer was appointed Sri Lanka's first lady magistrate in 1979. Her climb up the ladder was steady, though not dazzling; fifteen years on, she became the first lady District Judge (Grade 2). No short-cut, no parachuting, but the requisite period of dedicated service in the Bar and Judiciary, before appointment to this level.

Ms. Prematilleke celebrates her sixtieth birthday on January 1, 1997. But she is one person who will not have much to rejoice about on this auspicious day, for it will coincide with her retirement from the Bench. After 12 years of service as a District Judge, Ms. Prematilleke is left with mixed feelings about the career she has dedicated her life to. Since 1995, she has seen three of her contemporaries go above her. J. Balapatabendi has been appointed to the High Court, Chandra Ekanayake has been made a District Judge Grade I and Mr. Majeed has been appointed as High Court judge for the North and East, while she remained in the same level. The reasons for her stationary orbit are perhaps known to the higher powers. By right she should have received her promotion to the High Court in October 1995.

Attempts to politicize the judiciary are nothing new. But there are consequences, far reaching ones at that, when accepted practices that have been long upheld are flouted. The fact that all District Judge promotions have been blocked since April this year has been reported widely in the press. It is a well-known secret in Hulftsdorp Hill that the reason for this is the outcome of a certain case which we will refrain from elaborating on.

Getting back to the plight of Ms. Prematilleke, it has to be mentioned that there are no black marks on her record to cast doubts as to why she did not receive her promotion when it was due.

She has in her long career of twenty seven years, received all the allowances and perks she was entitled to. Nothing was withheld that might have indicated any such problem. Then why the delay in promoting a career judicial officer?

The obvious comparisons notwithstanding, of the shoddy treatment of a senior officer as against the rapid rise of a young professional, the issue bodes ill for the ranks at Hulftsdorp where seniority and the just rewards for long service are being rapidly undermined in the prevailing political climate. Ms. Prematilleke will have much to ponder as the New Year approaches and one cannot fail to miss the signals that are emanating from the authorities. Nothing can be more discouraging and especially to a judicial officer than the fact that hard work, dedication and fearless independence are of little consequence... Knowing the Law Minister is the criteria for going up the ladder. Is this the justice we are striving to uphold? Is this the justice the judges of Sri Lanka deserve?

In India, Supreme Court Justice J.S. Verma told the Police "Be clear that your investigations should not be conducted in watertight compartments. You cannot close any case against anybody." Justice S.P. Barucha told the Central Bureau of Investigations (CBI), "You have to keep on trying and getting fresh evidence. No case is to be closed by you."

Thus the Supreme Court of India without precedent, with the entire backing of the legal fraternity and the public at large, began proceedings by giving directions to the CBI, and presumably legitimizing judicial intervention to produce in court anyone guilty of the Hawala scandal. The belief that the CBI is investigating with a view to absolving K.P.V. Narasimha Rao, the former Prime Minister of India was shattered when the Supreme Court gave directions to proceed with the investigations.

It is important to note that in his decree dissolving Parliament and dismissing the government of Benazir Bhutto, Pakistan President Farooq Leghari, made reference to Ms. Bhutto trying to subvert the judiciary. Ms. Bhutto in turn accused President Leghari of deceit and said the dissolution came when the governing party and the opposition were formulating a bill on corruption that would permit investigating even the President of the country.

It is interesting to note that Ms. Bhutto like most politicians in the sub-continent, as prime minister of Pakistan, did tinker with the judiciary, especially when she (i) appointed an Acting Chief Justice, (ii) appointed the Chief Justice of the High Court of Sindh Province and (iii) failed to confirm six additional judges of the High Court of Sindh.

All Bar Associations of Pakistan went to Court in support of petitions which challenged the appointments made by Ms. Bhutto. The Supreme Court Bar Association and the Lahore High Court Bar Association appeared on behalf of the petitioners, and their associations were represented at the hearings by the respective presidents of the bar associations.

The petition tendered to the Supreme Court in Pakistan on the appointment of some judges made by Ms. Bhutto raised an interesting point. A lawyer petitioned that his fundamental rights had been violated. It was submitted by the petitioner that he is a practicing lawyer and has a very wide interest in the judicial setup, which can function independently only when there is a proper and total compliance of articles relating to the judiciary, and appointments are also made in accordance with the constitutional scheme made thereunder.

According to him, a lawyer cannot survive if the judiciary is not independent, and he said it was a duty of advocates to endeavor to prevent political considerations outweighing judicial fitness in appointment and selection of judges. The petitioner contended that the bar should protest earnestly and actively against the appointment or selection of persons who are not suitable for the bench.

These two incidents referred to above from India and Pakistan are extremely important today in relation to our country, when a public outcry and debate has begun on the appointment of Dr. Shiranee Bandaranayake to the Supreme Court. The majority of the members of the Bar Association openly and most judges privately, have expressed their concern and disdain over the said appointment.

The appointment of a judge to the Supreme Court or to any other high court under the Pakistan Constitution requires consultation with the Chief Justice. It has been said by those who support the appointment of Dr. Shiranee Bandaranayake to the Supreme Court that as there is no such requirement under our Constitution, the appointment of Dr. Bandaranayake is legal and proper. They contend that our constitution does not provide any provision for the President of the Republic to consult the Chief Justice. Though the Constitution is silent on the principle of consultation there is no impediment for the Chief Justice to recommend the appointment of judicial officers to the Supreme Court and to the Court of Appeal. But they emphasize that the President of the Republic, by the powers vested on her under the constitution can ignore such recommendations and it is not binding on her to act on such recommendations. It is interesting to note that our constitution does not even provide for the appointment of an attorney-at-law to the Supreme Court. Therefore, it is perfectly tenable and proper for any one to argue that the President can appoint anyone, even a person who is not an attorney-at-law or a person not learned in the law as a Supreme Court Judge. Therefore, the appointment of an Attorney-at-Law, is based on the convention that has been punctiliously followed by the Executive.

With the promulgation of the 1978 Constitution and subsequent attacks made by the then executive in removing judges from the Supreme Court, the Bar unequivocally condemned the action of the executive. In October 1978, the present Sri Lanka ambassador in Saudi Arabia, Javid Yusuf, as a member of the Bar Council moved the following resolution:

'Whereas the independence of the judiciary is the very basis on which a fair administration of justice lies', and whereas the security of tenure of judges is one of the best ways of ensuring such independence, and whereas the provisions of the Constitution of the Democratic Socialist Republic of Sri Lanka which provided that the judges of the earlier Supreme Court and High Court ceased to hold office on the commencement that judges of these Courts had to be appointed afresh, militate against such a safeguard, the Bar Association of Sri Lanka views with alarm the offending provisions of the Constitution of the Democratic Socialist Republic of Sri Lanka and regards them as the most serious threat to the independence of the judiciary in this country.'

Then on March 12, 1988 the Bar Association adopted the following resolution:

The Bar Association of Sri Lanka deplores the suppression of Justice R. S. Wanasundera in the appointment of the new Chief Justice and strongly disapproves such action as compromising the integrity and independence of Judges. This Association hereby further expresses its fullest confidence in the impartiality and integrity of Justice R. S. Wanasundera. One hundred and forty two members voted for the resolution and only one member voted against it.

When Special Presidential Commissions were to be appointed to investigate conduct of the judges, the Chief Justice of this country was hauled before a Parliamentary Select Committee to inquire into an alleged misconduct. The Bar came out strongly and steadfastly against such intrusions made by the Executive into the hallowed temple of Justice. These were attempted by politicians who were in office with a historic mandate given to them by the people to rule. This was the era where the executive opined that other than transforming a male into a female there was no other act the executive cannot perform. The judiciary was an obstacle to such grandiose strategies of the executive and had to be subverted. But the Bar cried foul of such action by the executive, tinkering with judicial processes. It vehemently and unreservedly condemned such actions of the executive. A resolution condemning such executive action prevented the executive from interfering with the promotions of career judges. The only exception was the promotion of members of the official bar to the superior courts on the recommendation of the Attorney General and the Chief Justice.

After relentless protest by the Bar against the then executive attempts at monkeying with the judiciary, the executive finally gave in. Thus a convention was formulated by the executive to appoint judges to the Supreme Court and to the Court of Appeal purely on the recommendation of the Chief Justice and the Attorney-General. No member from the unofficial bar was appointed. The Bar found that this was a healthy tradition. A member of the unofficial Bar would always fall into some political camp and would be subjected to intense scrutiny and criticism.

For a considerable length of time, until the appointment of Dr. Shiranee Bandaranayake no person from the unofficial bar has been appointed to the Court of Appeal or the Supreme Court.

This appointment has become the most controversial judicial appointment of the decade. In defending the President's prerogative of appointing judges to the Supreme Court one must be reminded that a very important principle has gone unnoticed or has been deliberately suppressed from the public and therefore not commented upon. Even those persons who feels the appointment is legal and is unassailable but not proper have not considered the fact that hitherto the appointments to these exalted positions have been made on the recommendation of the Chief Justice. The process of appointment of Judges to the Supreme Court is an integrated process, selecting the best and most suitable persons for the appointment. When the vacancy to the Supreme Court occurred, the Chief Justice by writing has informed the President of the Republic that Justice

1. Dr. Asoka Gunawardena be promoted to the Supreme Court to fill the vacancy,

2. to promote Justice D.P.S. Gunasekera as the President of the Court of Appeal.

The Bar, being aware of these recommendations, and not being aware of any cogent reason indicating that the recommendees are not suitable for the appointment, is revolting for not following such a healthy tradition created, cultivated and jealously guarded by the Bar for the last many years after an intense struggle with the executive. In the eyes of the members of the Bar this is all the more reason to regard the appointment of Dr. Shiranee Bandaranayake with skepticism and circumspection.

Dr. Asoka D.Z. Gunawardena and D.P.S. Gunasekera had won the admiration of the bar for not only for being independent but for having dispensed justice fearlessly, and for having always endeavored to preserve the powers vested in them to do justice and maintain truth for the common good of the people. The supporters of the appointment even in long articles written by writers whose authorship is clearly seen by the verbiage used have not answered two most important and fundamental questions.

1. Why has the President ignored the recommendation of the Chief Justice?

2. Why has Dr. Asoka D.Z. Gunawardena not promoted to fill the vacancy?

The answers to these questions go into the roots of a fundamental issue, which is the independence of the judiciary.

It is known that all societies, whether they are monarchies, dictatorships or democracies, are governed by legal orders which are the cornerstones of civilized life. As a rule the orders are implemented by the executive in the interest of good governance and are interpreted by the judiciary to ensure their constitutionality and legality.

On the advice of two governors from the Sabaragamuwa and the North Central Province, the President dissolved the two Provincial Councils without even heeding to the advice given to her by the Attorney General. The Chief Ministers affected by such dictatorial orders went to the Court of Appeal challenging the order of the President. The Court of Appeal made an order nullifying the dissolution of the Provincial Councils. The Supreme Court affirmed the decision of the Court of Appeal.

D.P.S. Gunasekera, second seniormost judge in the Court of Appeal who was a member of the Special Presidential Commission inquiring into the deaths of Lalith Athulathmudali and Denzil Kobbekaduwa, resigned from the aforesaid Commissions. The question that looms large in the minds of the public is whether the President of the Republic ignored the recommendations of Chief Justice as the two judges above-mentioned acted in the manner which epitomizes the great traditions of the independent judiciary.

Historically, even in countries like Britain, independent judges have more often than not been attacked by the monarchs who refuse to accept judicial reviews of the executive actions. The constant conflict between the executive and the judiciary comes into the open when the latter by judicial activism converges to restore the inherent and inalienable rights of the individual. The executive displaying its naked political power clothed under the privileges of Parliament and immunities granted to the executive, often castigates an independent judiciary.

The public at large who are looking upon the Supreme Court to preserve and restore their lost freedoms, and the Bar which is the collective organ to fight against such inroads made by power-hungry politicians to subjugate an independent judiciary, will protest, as the very existence of their noble profession is depended upon the institutionalized judiciary which strives to preserve its independence. Some corrupt politicians who are motivated by filthy lucre they amass at the expense of the public by untrammeled corrupt activities and without any regard to human decency or morality will find an independent judiciary to their intense detestation. Some politicians (who are at cross purposes with an independent judiciary) preach transparency only for the digestion of their voters. Some who are involved in alienating the democratic rights of the people by their action which transcends legality and constitutionality, are opposed to independent judiciary.

This is why the minister or his aides in Parliament or outside have not been able to give an answer to the non promotion of the two senior most judges to the Supreme Court.

It is to the credit to the Bar of this country that they have not subverted truth or justice for political expediency. The Bar till recently has always fought against the executive who used the much maligned executive power to send signals to the judiciary hoping that they would ultimately succumb to the pressures and subvert their integrity to appease the executive.

Those who are trying to look at this appointment under a political veil are those who feel that political victimization of the judges who have become fiercely independent are sine qua non for protecting the government in power.

The only way to secure the independence of the judiciary is to promote the tradition that no one other than a career judge and those from the Attorney-General's Department be permitted to be appointed to the Superior Courts. This will prevent politicians from appointing their political cohorts, aides and other supine acolytes to the Superior Courts.