8th December 1996

Move to check executive interference in judiciary gathers pace

R. K. W. Goonesekera led a team of lawyers consisting of a number of President's Counsels in the most extra-ordinary application ever to be filed in the Supreme Court. Mr. Goonesekera is the second most senior lawyer after H.L. De Silva P. C., who appeared in the Election Petition case for Sirimavo Bandaranaike.

The Bar Association every two years elects its president by a vote. But nonetheless the de facto leadership of the Bar, after H.L.De Silva left the country on a government assignment, fell upon Mr. Goonesekera. Even Desmond Fernando, the President of the IBA considers Mr. Goonesekera as his senior and the leader. It was on Mr. Fernando's invitation Mr. Goonesekera became the deputy president of the Bar Association.

It is extremely unfortunate that the other leaders of the Bar of the caliber of Mr. Goonesekera, L. C. Seneviratne P.C. Faiz Musthapa P.C., and Arthur Samarasekera P.C. would ever think of becoming the President of the Bar Association, as they do not want to face an election. Most young members when they enter the profession have no opportunity in meeting the seniors of the caliber of Mr., Goonesekera.

Those who aspire to become presidential candidates from the time they become eligible to contest, adopt various methods which deter most seniors from contesting.

One of the methods is to have more apprentices than your chambers can accommodate. So no leader respected by the judges and the colleagues and the juniors would ever think of contesting the Presidency of the Bar Association. So we have little or no choice. In spite of these unsavory methods adopted by some candidates so far the members have elected the better candidate but certainly not the best candidate who can give leadership in a crisis.

A week before November 30, 1996 there was a rumor spread by a lady lawyer at a provincial Magistrate Court, that Shiranee Bandaranayake was going to be appointed to the Supreme Court. Though it was well known that this lady was in close contact with the Minister of Law, no one believed her. Some newspaper reporter got this information and tried to contact Dr. Bandaranayake and was informed that either she was abroad or not in town. So every one thought that it was a rumor practiced on the fellow colleague by this confidant of the Law Minister. On November 30 every one saw Dr. Bandaranayake taking her oaths before the President as the memorable occasion was televised on Rupavahini. The amiable Law Minister was present at the oaths ceremony. She had not forgotten to be grateful to her mentor and guru. Dr. G. L. Peiris, but she for a moment forgot that she was a Supreme Court judge.

I must say after the killing of Wijeyadasa Liyanarachchi, this is one event that pricked the conscience of the members of the profession. This was a rallying point, where hitherto, the Bar refused to react when the judges of the Supreme Court were branded by various names by politicians. When the government openly refused to issue licenses for the taverns of members of the opposition, in violation of the fundamental rights of some of the citizens, it was the Supreme Court that restored their fundamental rights. The President in a television interview, castigated the judges of the Supreme Court.

Some members who were agitated by these remarks thought it fit to bring a resolution before the Bar Council. When it was brought, there was a consensus that the Presidential remarks ought to be condemned.

A lawyer who was a politician thought that it was more necessary to protect the President than the Supreme Court, decided to raise an objection purely as a face saving method.

Some of the SLFP lawyers who worked tirelessly for the victory of the PA and as in most political parties, had been sidelined, and observing that the plums of office are still with those who supported the UNP and changed colors just after the election, thought this was an opportunity to show their strength and joined the band wagon and devised methods of defeating the resolution. Those who were in high office and never thought of those lawyers, who did the difficult jobs like running to the police station when a supporter is arrested, wanted to cajole them again with false promises. Before the meeting of the Bar Council, meetings were held at various residences and hotels and a decision was taken that a quick head count be taken and if their group had the majority to defeat the resolution, and if they found that they were in a minority to disturb the meeting. It was the general opinion at this meeting that as K. Balapatabendi supported the candidature of N. R. M. Daluwatte as against Dr. Jayatissa De Costa, would be beholden to Mr. Balapatabendi. Many members believe Mr. Daluwatte P.C. would cave in and adjourn the meeting, if the meeting was disturbed by members shouting and jeering and raising all kinds of objections.

Every single member of the Bar Council who was thought to be a supporter of the government was telephoned and promised briefs and other major and fringe benefits if they attend the Bar Council meeting and defeat the resolution. But wiser counsel prevailed. Most members were of the opinion that no government should be permitted to monkey with the judiciary. When those opposed to the resolution came to the meeting and found that the majority was for the adoption of the resolution, it became one of the most notorious meetings of the Bar Association. It was a disgraceful sight.

Recently appointed PCs went near the president's table and grabbed the microphone and others jeered and hooted. A. chosen few raised objection after objection. Others never heeded the request of the President and spoke in Sinhalese and translated the same to Tamil. They all had a field day. The majority of the members were shocked and speechless. The resolution never saw the light of the day. It was finally withdrawn.

For the first time in the history of the Bar Association, a small minority of the members acquiesced in the Executive action in condemning the judiciary. These were the events that led to the appointment of Shiranee Bandaranayake.

After this event two ministers, one of whom is a lawyer, came on the national television and said things about the judiciary which cannot be published as those statements were in gross contempt of the Supreme Court.

The Executive got the feeling that everything the executive does will not be opposed by the bar as the SLFP lawyers will not permit that to happen.

It was only a few decades ago that the late Felix Dias Bandaranaike thought of creating a rift in the profession by promoting a candidate against one of the leaders of the Bar. When his representative lost that election he tried to stifle the profession. After Mr. Bandaranaike lost his seat as a member of parliament, it was a sad spectacle to see him come to the law library to appear in some cases. Few would come near him and speak to him and others avoided him like the plague.

Then came JR, who won unprecedented 5/6 in the Parliamentary elections. He sacked judges, and got his supporters to parade in front of the homes of judges and throw stones at their residences. He was said to be paving the way to go before the people for a third term as the executive president, when Wijayadasa Liyanaarachchi was killed. The entire Bar protested. His ambitious dream to become the President for a third term was doomed, by the profession taking the cause of death of a colleague to the streets. Resolutions were adopted condemning the action of the executive. The bar boycotted the opening of the Superior Courts complex. JRJ gave up the idea of contesting again.

After the lapse of many years it is very unfortunate that this government is following the evil example set by others. Gradually it became the knowledge of every one why this appointment was made nearly six months after the vacancy occurred. Everyone questioned why the two senior most judges were overlooked and not given their due promotion. Almost every member of the Bar, some privately and other publicly, protested at the appointment.

If one takes a close look at the lives of judges, it would be obvious that they lead the most secluded life. Even their children sometimes suffer from isolation as they cannot entertain their friends or their parents. When they are told that some one who has no experience of active practice cannot be appointed a primary court judge can nonetheless be appointed to the Supreme Court, frustration sets in. If any one walked into any court house, especially to the Court of Appeal, you could feel the sense of frustration.

Amidst this furor in Colombo, Desmond Fernando was elected the President of the International Bar Association. It was arranged Ñ courtesy the President Ñ to receive him through the VIP lounge. The President has been Mr. Fernando's childhood friend. Kumar Ponnambalam and some of his lawyer friends went to the airport in the wee hours of the morning to receive him.

K. Balapatabendi has taken offense with Upali Samaraweera at the presence of Kumar Ponnambalam and Dr. Jayalath Jayewardena at the airport, forgetting that Mr. Fernando P.C. has brought honor to this country by being elected to this exalted office and is the President of all the lawyers in the world.

Mr. Fernando immediately after the arrival having heard about the appointment gave an interview to the Capital Radio and the MTV television. Mr. Fernando does not mince his words and has never done it even to appease his childhood friend, the President. He clearly spelt out what he felt about the appointment of Shiranee Bandaranayake. He summoned a large number of lawyers to his residence. They included K. Ratnavel, Kumar Ponnambalam, Ajantha Cooray, Methsiri Cooray, Upul Jayasuriya, Hemantha Warnakulasuriya, Suren Pieris, Janprith Fernando and Kalinga Indatissa.

Mr. Fernando was of the view that there has been serious erosion of the independence of the judiciary, the executive action did amount to sending wrong signals to the judiciary and that it was the duty of the Bar to protect the judiciary. Then it was decided to draft a resolution condemning the appointment, to be moved at the next meeting of the Bar Council.

S.L. Gunasekera drafted the resolutions, which Mr. Ponnambalam thought were the most appropriate. Later these resolutions were modified. It was brought to the notice of the movers that a meeting was being planned to be held at the Oberoi Hotel with a view to disrupting the meeting under the auspices of K. Balapatabendi and Dr. G. L. Pieris and the bill was to paid by a corporation.

It was also well known to these lawyers that some of the strongest supporters of the government differed on this appointment. R. I. Obeysekera and Arthur Samarasekera did not support this appointment publicly, and did not want to get involved this time when the resolutions were moved. Ranjith Abeysuriya, Ged Gooneratna and a large number of members who were with the government also oppose this appointment.

Mr. Fernando was of the view that the Bar should move the Supreme Court to set aside this appointment. He was willing to be a petitioner to rectify this injustice.

Hemantha Warnakulasuriya and Upul Jayasuriya were entrusted with this task of meeting counsel and arranging everything with a view to filing action in the Supreme Court. Jeff Alagaratnam was contacted by Mr. Fernando who requested him to prepare the draft. Mr. Fernando spoke to R. K. W. Goonesekera and Shibly Aziz P. C. and requested them to assist the Bar to avert this crisis, which by this time has taken untoward proportions. The Bar was divided on various lines. But majority was opposed to this appointment.

When these things were happening Shiranee Bandaranayake stated that she did not wish to have a ceremonial sitting where the Bar welcomes her. As one resolution was for the members not to attend the ceremonial sitting, in order to find out whether there had been any precedents, Indian and Pakistan judgments were got down by courier and the pleadings were being prepared by the most eminent counsel at the Unofficial Bar.

The resolution was postponed on an objection taken by Hillary Fernando from Chilaw who said he got the notice on November 22 and then he started counting the number of days with the help of his fingers to correctly ascertain the number of days from the 22nd to 30th and shouted that it was less than seven days. During this commotion most members who opposed the resolutions got a rude shock when Mr. Warnakulasuriya agreed with Hillary Fernando and moved that the meeting be adjourned for December 14 only a very few knew that the coup detat was accomplished. On Monday morning by 8.20 a.m. three applications under the name of Edward De Silva P.C., Kumar Ponnambalam and Chittha Swarnadhipathi were filed at the Registry of the Supreme Court.

Mr. Fernando who came back from Singapore took the petition of the case to be presented to the Human Rights Committee of the IBA, the ICJ and other international organizations. R. K,W. Goonesekere, Shibly Aziz P.C., L.C. Seneviratne P.C.,. D. S. Wijesinghe P.C., Nehru Gunatillke P.C. and more than 25 lawyers agreed to appear on behalf of the petitioners.

It was the contention of Desmond Fernando that in the subcontinent the judiciary was under constant attack by politicians, and it was the duty of the Bar to bring these issues before the Supreme Court so that like in India and Pakistan and Bangladesh, the Supreme Court will ensure that the Executive appoints judges not as the Executive fancies but under the guidance and with the consultation of the judges. This is the only way to ensure the independence of the judges and as the bar has a very vital interest in the judicial set up which can function properly only when proper persons are appointed The very fact that Bar has taken these unprecedented steps clearly shows that the bar has no confidence in the appointment of Dr. Bandaranayake. There have been other appointments made from the unofficial bar in the past. But never has there been even a murmur of protest even by the so called SLFP Lawyers Association

R.K.W. Goonesekera in his opening address in supporting the fundamental rights application of Edward De Silva P.C. said he was supporting an unprecedented application. What is at stake is the independence of the judiciary, as a practical reality.

He said he stood for an independent judiciary. All those who did everything possible to ensure that these actions were filed did this with great sacrifice and commitment. Whether Dr. Shiranee Bandaranayake advocated the political package or not most members of the Tamil community unequivocally protested at the appointment because for them the independence of the judiciary and the right to practice their profession was paramount..

Soon after the President arrived in Sri Lanka from Paris she had a dinner party for the MPs . An MP who is a pal of mine told me that a number of MPs saw a heated barrage of words directed at Mr. Balapatabendi by the President, and it had something to do with the appointments of judges.. On the day the application was supported it was known that the government has got the feeling which way the wind was blowing and appointed Dr. Asoka de Z Gunawardena to the Supreme Court and D. P. S. Gunasekera as the President of the Court of Appeal. This was indeed a victory for all those who fought for justice and fair play.