15th, December 1996

Three contenders have declared their candidacy for the post of the next President of the Bar Association (BASL).

They are President's Counsel Romesh de Silva, President's Counsel A.K. Premadasa and Gamini Premathillake, Attorney at law.

Campaigning has already got off the ground with Mr. de Silva and Mr. Premadasa, two eminent civil lawyers, seen giving on a court-to-court walkabout. Mr. Prematillake, the present deputy president of the BASL, declared himself eligible some weeks ago and squashed rumors that he was pulling out.

The campaign is bound to gather momentum in the run-up to the elections next March, particularly due to the current goings-on at Hulftsdorp.

The legal fraternity is getting sharply divided on party lines, but a fair segment of independent lawyers are expected to swing the scales at the end.

Mr. Premadasa is clearly a Government supporter, and has been one for many years. He's been chairman of Lake House whenever the SLFP was in office.

Mr. de Silva, has maintained a non-party stance in his legal career, while Mr. Premathillake is counting on his work for the BASL as his credo

Meanwhile, the Bar Association of Sri Lanka announced that the Electoral Register would be closed at 6 p.m. on Monday, December 16.

Only those members who pay up their subscriptions before 6 p.m. on Monday would be entitled to vote at the forthcoming election for the posts of president and secretary of the BASL, the BASL said.

The Bar Association Secretary requests the members who have not paid up their subscriptions to do so before 6 p.m. on Monday. it said.

UNP MP Sarath Kongahage raised an adjournment question about delays in appointing judges. Mr. Kongahage sought an answer from Justice Minister, Dr. G.L. Peiris for his question which read:

"Is the Hon. Minister aware that as a result of the promotion of High Court Judge. Mr. Upali de Z. Gunawardene being delayed during the last 8 months, a serious situation has developed as overdue promotions of all Judicial Officers in the High Courts, District Courts and Magistrates Courts have come to a grinding halt?

"The Hon. Minister has said in an interview to the "Sunday Leader" of November 1 last month that the delay in promoting High Court Judge Mr. Upali de Z. Gunawardene has no relevance to a sensitive defamation case against an editor of a Sunday paper. If that is the case will the Hon. Minister tell this House the exact cause for the delay and what steps the government has taken to remove the obstacles to enable the upward promotion of all Judicial Officers? Will he ensure that steps are taken to effect the promotion of Mr. Upali de Z. Gunawardene without further delay to enable the string of promotions of all Judicial Officers in the High Courts, District Courts and Magistrates Courts to be carried out with immediate effect so that all these Courts can function more effectively and also bring about greater satisfaction in the Judiciary, since this unwarranted and unexplainable delay has resulted in deep dissatisfaction among the Judges at all levels? If not why?

Dr. Peiris in his reply said that appointment of Judges was a function of the President and the delay of appointing Judges was not unusual.

By Mudliyar

President Chandrika Kumaratunga has done it again. She has said it was ironic and pathetic that certain lawyers were raising a hue and cry over the appointment of a fully qualified woman judge to the Supreme Court.

This matter is subjudice, and it is highly improper for any one, for that matter especially the President of the country, publicly comment on the appointment. Unfortunately, this is not the first time, the President has done this. She made some uncomplimentary remarks about the decisions of the Supreme Court regarding the issue of liquor licenses. When she made those remarks, the matter was also subjudice as no final order had been made by the Supreme Court. Then she made another remark when the Vijaya Kumaratunga Commission was sitting. Having appointed a commission to probe the killing of her late husband Vijaya Kumaratunga, she blamed the late President Ransinghe Premadsa for the killing, when the commission was deliberating on the matter.

Thereafter when Rohini Hathurusinghe gave evidence before the Kobbekaduwa Commission, the President said she knew what transpired at the Commission long before it was revealed to the public.

What happened to Rohini Hathurusinghe is now history. Some having heard Rohini Hathurusinghe and the President's comments, damaged the statue of Brigadier Wimalaratne. Rohini Hathurusinghe is now facing an indictment for perjury.

It is very unfortunate that this government having come to power on a solemn pledge to the people of this country that it would protect human rights and the independence of the judiciary, is now attacking the judges and the Supreme Court with invective and commenting on matters before court and in direct violation of the principle of rule of law.

Without heeding the principle of subjudice, the President is commenting upon the merits of the appointment. By these comments the President is indirectly commanding the Supreme Court what it should do in the case. The lawyers of this country have rallied round and made four applications in the nature of fundamental rights petition to the Supreme Court praying inter alia that the appointment affects their fundamental rights to practice their profession and is in violation of Article 14 (g) of the Constitution.

The Supreme Court would decide on Monday whether or not to grant leave to proceed. Under these circumstances it is very unfortunate that the President has decided to make these unwarranted, unfortunate and undignified remarks about the Bar and the judiciary hiding under the veil of immunity. Therefore it has become necessary to reply to her, until the Bar decides what course of action it would take not only against the President but also against the Minister of Justice on the remarks attributed to him which appeared in the Divaina Paper and admitted to be correct by him in Parliament.

The President had said that 'when the previous regime appointed outsiders to the highest court in the land, nobody dared to open their mouths.' When the previous regime in order to appoint outsiders to the court sacked the incumbent judges by the adoption of the new constitution, as this columnist had pointed out, there were resolutions condemning such action of the Executive. When the appointments were made there was no protest as the appointments were from the Bar, and on the whole acceptable to the Bar. If there were appointments that were not acceptable then the Bar would have protested. If these appointments were not acceptable to a certain section of the Bar why did they choose to remain tight lipped.

Let us ask the President where were the so-called SLFP Lawyers Association and her own secretary K. Balapatabendi when these impugned appointments were being made. Why did not Mr. Balapatabendi & Co arrange a meeting at the Oberoi to move a resolution against such appointments? If there was no one to pay the bills of the Oberoi Hotel then at least they could have had a meeting at Buhari Hotel and discussed the appointments and got them to open their mouth and express their indignation. As far as we know there was no impediment, not even a foot and mouth disease to prevent them from opening their mouths.

Where were those 'pal-kavi lawyers'? For your information Madam President, there were other people like Javid Yusuf, your ambassador to Saudi Arabia and Ranbanda Seneviratene who opposed such appointments and moved resolutions at the Bar Council. They were very vociferous and their mouths were not gagged by any means. The only difference was that the meeting was held amongst gentlemen. There was decorum and sanity. Every one even those who opposed the resolution respected the views of others. No disruptions, no dragging of the microphone, no threats and pointing fingers at the president and no 'Pal Kavi' singers.

Voices of the Balapatabendis and Anil Obeyesekeras and new recruits like Alloy Ratnayakas and others were not heard then.

Then there were others who did not classify themselves as SLFP lawyers but protested with their mouths open. And there were other lawyers like Desmond Fernando, Suriya Wickremasinghe, the late S Nadesan Q.C. and Nimal Senanayke P.C. who protested when the Executive acted like a petty dictator and wanted to impeach the integrity of judges of the Supreme Court. Like Edward de Silva P.C. of today, there were others like Suranjith Hewamanne who came forward as petitioners when news items were published at the behest of the executive casting aspersions on the conduct of judges.

The Bar not only of this country but all over the world especially in countries where there is a semblance of democracy had fought and will fight every single tin pot dictator who tries to stifle the judiciary. When the People's Alliance, having come to power by wooing the voter that it would never violate the human rights and other rights of the voter and will never interfere with judicial power and would never stifle the legal profession, is doing exactly the opposite, it is the sacred duty of the Bar to protest. It is unfortunate that the President cannot or does not want to know the reasons for these protests.

The President has said further "Members of the legal community were compelled to talk in whispers during a certain era when respect for the judiciary was at a low ebb."

We do not know of an era where the legal community was compelled to talk in whispers. This may relate to the so-called SLFP lawyers, but I know when lawyers were killed, people like Ranjith Abeysuirya and Mahinda Rajapakse were in the forefront with innumerable other lawyers to restore the dignity of the legal profession.

Though I am not aware of a time when the legal community spoke in whispers, and if the President was referring to the era in which lawyers were killed. I must say that the legal community was not deterred by abductions and/or killings of lawyers. They spoke and protested most intensely.

I still remember Ranbanda Seneviratne addressing a gathering of lawyers, law students and the public in front of the Bar Association building and rebuking the head of state. There were large contingents of armed policemen, and even they were enjoying the speech replete with humor and anecdotes.

The Bar brought the killings to the attention of the whole world. They recommended to the government that it should immediately bring the International Red Cross to trace the disappearances. The government acceded to this request. Though there were no SLFP lawyers even issuing a statement, the Bar Association with the help of persons of the caliber of Prins Gunasekera Desmond Fernando, Suriya Wickeremasinghe, R.K.W. Goonesekera, and H.L. De Silva fought resolutely against acts of state terrorism. The only time Ranjan Wijeratne apologized in public was when he made an unqualified apology to the Bar Association. This was a sequel to a statement made by him accusing the Bar Association to be a terrorist organization.

The Bar has never cowed down to any one, whether it is Sirimavo Bandaranaike, J.R. Jayewardene, R. Premadasa or lesser mortals like Felix Dias or Ranjan Wijeratna.

The President ought to get a lesson about the history of the Bar and its struggles before she makes remarks and antagonize the Bar, not from sycophants but from persons who fought these erosions to ensure freedom and the independence of the judiciary. Unfortunately we do not have amongst us people like Nimal Senanayke or S. Nadesan Q.C. who can advise the government on the struggles the Bar had with the executive in the past. Perhaps Lakshman Kadirgamar may be one of the persons who has some knowledge about these struggles, and can provide saner counsel about Hulftsdorp and those who work here.

Neither can I recall of an era where the respect for the judiciary was at a low ebb. Unless she is referring to what is happening today, when the executive is striving to lower the prestige of the judiciary by attacking it. Even with these attacks the legal community and the public always had the judiciary in the highest esteem. Though politicians of today are resorting to absolute untruths and trying to bring the esteem of the judiciary to a very low ebb, the esteem of the judiciary was never at a very low ebb in the minds of the people.

This is why the Bar is fighting so hard to preserve that esteem and to prevent the executive from appointing judges who are unsuitable to hold that position. Otherwise, like in the semi autocratic countries we will have judges who are like jockeys fixing races for the benefit of their masters.

We respect the law and justice, the President has said. If the President really means what she says, then please get the Attorney General to file action against S.B.Dissanayake and Jeyaraj Fernadopulle for committing contempt of the Supreme Court. Please request the Attorney General to go into the statement made by Dr. G. L. Peiris and consider whether that statement is contempt or not. Dr. G. L. Peiris told the Sunday Divaina that the judges in some courts act arbitrarily with the object of lessening the power of the State and that due to that reason it has been obstruction to use the 63% mandate received from the people to rule the country. He then has asked the question whether it is reasonable that the courts have come forward not only to cancel the transfers of certain officers but also to decide the place to which they should be appointed. Has he committed contempt of court when he said this?

Dr. G.L. Peiris is the Minister of Justice of this government. He is not an ordinary person He was the Professor of Law and the Vice Chancellor of the University of Colombo before he became the Justice Minister. After the demise of President Premadasa, he left the university and joined the SLFP.

When D. B. Wijetunga as President and using his presidential powers released two suspects giving them a presidential pardon, Dr. G. L. Peiris felt strongly on the issue. Though most right thinking people condemned this action, they also condemned the action of the previous regimes and when human rights were being violated and students were being killed. I, for one, at that time did not hear of a Professor G. L. Peiris fighting against blatant violations of human rights, or may be he reckoned that there were no human rights violations even to be discussed in whispers.

I was present at a seminar when Dr. G.L. Peiris discussed the famous Kurunegala pardon. I listened to Dr. G. L. Peiris with rapt attention. It was such a powerful and a moving address. Quite contrary to the views expressed by the President referring to a mythical era where the esteem of judiciary was at very low ebb, and people were talking in whispers, this is what he said loud and clear:

'The judiciary enjoyed great esteem and confidence in this country. But however carefully courts considered cases, held trials, found people guilty or not guilty, and impose sentences, if people believed that political considerations interfered then there would be an erosion of confidence in the administration of justice. The political power is given to a government to be used for the benefit of the people. That is the essence of the theory of social contract. Political power loses moral legitimacy if it is exploited for the benefit of the rulers. A reason for the utter disgust with the political system is the widespread perception that political power is being used for personal political gain."

With these exhortations at seminars conducted around the country he conveyed to the public that he was the champion gladiator fighting against any inroads made by the executive on the judiciary. He made such an impact at public seminars and other discourses over the news and the electronic media.

When he was elected the Minister of Justice there was widespread satisfaction . The lawyers did not forget that the Premadasa regime appointed a proctor's clerk as the Minister of Justice. The Bar thought when Dr. GLP was appointed as their Minister that a messiah had come to deliver them to the promised land where the respect for the rule of law and human rights would be the foundation of the new state. But they were disappointed. It must be stated the proctor's clerk, Vincent Perera, did not exhibit his knowledge of the law or his respect for human rights at seminars, but he knew from the vast experience he has gathered by working under a proctor what was right and wrong. Never did he say anything to offend the Bar or the judges. He acquired the respect for human rights from working tirelessly for the poor.

During the time of the JVP insurrection even those who shouted from pulpits about protecting human rights violations whilst having large hordes of security guards and army deserters for their own protection from the very people whose human rights they were trying to protect , Vincent Perera though a Minister went around without any security. The insurgents respected his sincerity.

Justice V. R. Krishna Iyer was a former judge of the Supreme Court who is often invited to address on human rights and the judiciary. Recently he was in Sri Lanka where Justice Ananda Coomarsawamy and other members of judiciary and the Bar were present when he in his characteristic style addressed a large gathering on his pet subject.

His learned discourse was appreciated and accepted by the distinguished gathering as he was one who practiced what he preached when he held power as a judge of the Supreme Court of India.

I would like to reflect upon some passages from his speech delivered in Colombo when the Bar Association hosted Law Asia Conference in the year 1993 which I believe is relevant to the present crisis concerning the Bar, the judges and the executive.

"The right to justice is the foremost human right (Cappeletti) and the Covenants as well as many Constitutions mandate impartial, prompt trials and competent, independent tribunals. None of the great rights can be functional unless there is guarantee of a dynamic, sensitive, impartial, human rights friendly judiciary at once independent.

"To politicize, rubberise, and communalise the judges is to deprive fair trials and firm verdicts. No man can be just who is not free (Woodrow Wilson). It is true that the United Nations has been concerned with the independence of the judges but it is equally true, like the Stalinist judges, the Bench could be bent to become boneless wonders ready to oblige the bosses in the Executive or be browbeaten and sacked by the Executive, as in the case of T.S. Abbas, former Lord President of Malaysia or be bribed by promotions and perks as in many cases of retiring 'brethren'.

"When the weaker, human, oppressed woman or black or dalit or political dissenter or social activist is up against the Establishment, the 'conditioned' judge turns the Nelson's eye at the justice of his/her case. And the victims exclaim:

A rape' A rape'...

Yes, you have ravish'd justice,

Forced her to do your pleasure.

In many countries, appointments of judges are genetically engineered publicly or privately and the dominant class or moneyocracy uses the court to legitimize breaches of human rights thro' lawless laws, custodial injustice and insensitive orders. When masses of humans are rendered homeless, retrenched or molested judges hear them in their seats bud justice takes leave. The law hath not been dead though it hath sleep' (Shakespeare). Winston Churchill's words are a warning, especially after Tun Salleh Abbas (Malaysia) was unjustly removed from office because of Executive displeasure:

'The Principle of complete independence of the Judiciary from the Executive is the foundation of many things in our life. The judge has not only to do justice between man and man, he has to do justice between citizens and the State. He has to ensure the administration conforms with the law and to adjudicate upon the legality of the exercise by the Executive of its powers.'

From the U.S. and the U.K., through the former Soviet Union and Democratic China, to India, Pakistan, Bangladesh and Sri Lanka, Philippines, Australia et al, the judicial universe needs added structural impregnability. It is noteworthy that the occasional dependency syndrome of justices has led to the international community of jurists evolving basic principles to ensure judicial independence.

The International Commission of jurists (Dr.L.M.Singhvi took the lead) produced the Basic Principles on the independence of the Judiciary. These were welcomed by the U.N. General Assembly by Res.No.40/146 (13 Dec. 1985) which invited Governments to respect these norms. Lawyers too are integral to the Justice system and can play havoc with people's justice under oblique influence or intimidation. A code for the bench and one for the Bar fine-tuned to the defense of Human Rights must be a raging and tearing campaign if justice is to be a high human right. Educating the judges and lawyers in the expanding frontiers of human rights and the new, insidious and even horrendous attacks on them is a serious desideratum. Sans Judicial radicalism, the court can undo human rights with a color wash of judicial justice. So it is that Anatole France made an acid statement. To disarm the strong and arm the weak would be to change the social order which it is my job to preserve. Justice is the means by which established injustices are sanctioned.'

The nexus between Justice, Justices and Justicing, on the one hand, and Human Rights and Annihilation of Inhuman Wrongs, on the other, is close and the law fraternity committed to social justice and human worth must insist on the universal adoption, nation by nation, whatever their developmental direction, of the basic principles of the Independence of the Bench and the Bar. To provide justice is the first task of government. This is the difference between a robber state and welfare state.'