23rd, February 1997

By Kishali Pinto Jayawardana

"This was not a contest between individuals. If it were so, I might not have won. I am not the most popular man in Hulftsdorp," says Mr. de Silva with wry humour.

"I think the Bar voted for a cause. It voted to uphold the independence of the Bar and as such my victory is a victory of a cause," he adds.

Relaxing at home after weeks of intensive campaigning, Mr. de Silva has reason to celebrate. His victory last week was resounding, capturing more than 2,100 votes of an all-island vote bank of 4,000 lawyers, of whom 3,000 lawyers actually voted. Mr. de Silva's majority prevailed in the city and in the main outstation branches such as Kandy, Kurunegala, Gampaha and Galle.

Q: How do you feel about your victory?

A: I do not think that my victory could be looked upon in a political or partisan manner. It is a victory for those who felt very strongly that at this juncture, there should be a non-political Bar.

I am apolitical and I have always been apolitical. The other main contender for the post, A.K. Premadasa was identified as being a Govt.-backed nominee. In that sense, those supporters of the PA who put forward Mr. Premadasa as a PA candidate did the Government a disservice, because the Bar was in no mood to tolerate political interference with the profession. Several leading members of the PA were also against this type of behaviour, and some voted for me while others openly supported me.

Therefore, it cannot be said that my victory is a victory for the UNP or a rejection of the PA. It was a rejection of recent attempts to politicize the Bar by certain sections of the PA. I won the Presidency on the strength of this strong anti-politicisation feeling.

Q: When you refer to recent attempts to politicize the Bar, are there any particular issues that you would like to mention?

A: The Bar has always tried to maintain and defend its independence, and I think that this spirit will continue for this is the nature of the legal profession. Different issues have arisen in the past where the independence of the Bar has been challenged.

The immediate issue prior to this election was, of course, the appointment of Justice Shirani Bandaranayake to the Supreme Court. Certain elements in the Bar wanted to politicize this issue. I must make it very plain that I am not referring to supporters of the PA alone. Certain sections of the UNP were also responsible for this.

The ongoing tragedy of our country is that every issue is reduced to cheap political bickering. Unheard of things happened, like lawyers singing Pal Kavi at a meeting. The near unanimous mandate that I received showed that the Bar resented this politicisation of the profession.

Q: Would you have been happier if you had won by a consensus vote instead of in this type of bitterly contested elections? Could you say that the present manner of elections does not reflect well on the Bar as a whole?

A: The Constitution of the Bar Association is such that the president and the secretary is elected by every single member. In one way, this is good because you have a democratic vote, but in another sense, the atmosphere is such that certain persons who would have been eminently qualified to hold the presidency of the Bar Association are reluctant to get themselves involved. For instance senior counsel like E.D. Wickremanayake and R.K.W. Goonesekere.

This is the main drawback in the present system.

I must add that I contested for the post sans labels and vote cards and so on, and I was able to win in spite of this.

Q: The independence of the Bar does not necessarily mean independence from politicians alone. How do you perceive the relationship between the Bar and the Bench?

A: The Bar should maintain a cordial relationship with the Bench and must be courteous but at the same time, must not be submissive to the Bench. One person who exemplified the correct attitude was Colvin R. de Silva, who was respectful, courteous and polite but could be extremely cutting when the occasion demanded. We cannot rise to his brilliance, but should at least strive to come close to his standards.

Q: As you assume the presidency of the Bar, are there any particular priorities on your mind?

A: I feel strongly that one must maintain the dignity of the profession. We must make the Association alive and every member feel that this is their profession. Of course, particular issues like problems of juniors should be addressed. There is obvious inequality between the privileged and the not so privileged in Hulftsdorp. The qualitative standards of the profession should be raised and infrastructure should be provided for outstation lawyers who are woefully lacking in the most basic facilities. I would ask for the support of the entire Bar in dealing with these issues.

By Mudliyar

On Wednesday, February 19 in the evening after the counting was over, when it was announced by Upawansa Yapa, the returning officer, that Romesh De Silva had obtained 1321 as against 486 votes for A. K. Premadasa and 212 votes for Gamini Prematileke, a disconsolable Mr. Premadasa was seen leaving the counting centre accompanied by Aloy Ratnayake.

It was a sad spectacle, Mr. Premadasa started his legal career 48 years ago, at the court of requests. Very soon he established a large practice. He was the best exponent of rent laws in the country. He has such a large clientele that he had to work tirelessly.

It was indeed a difficult task. Legal luminaries who come to the zenith of their career soon fade away, when younger and more astute lawyers take their place.

But not in the case of Mr. Premadasa. Even today there are a very few to match his knowledge relating to rent laws, the court craft and the skill of advocacy he had developed over the many years.

Then, what went wrong? If Mr. Premadasa agreed to contest the presidency of the Bar Association a few years ago when the senior members requested him to do so, there would never have been a challenge. He would have romped home with a massive majority. This time when he announced he was contesting, there was disbelief.

Most seniors privately empathized with Mr. Premadasa's predicament. It was extremely unfortunate that the Bar was politicised to such an extent that Mr. Premadasa a long-time SLFP supporter and currently chairman of the State Mortgage Bank became identified as the PA candidate.

The entire election was fought on that issue.

Romesh de Silva's campaign was founded on the footing that he would de-politicise the Bar. Gamini Prematileke identified himself as the only non-political candidate.

The fact that he received 212 votes in Colombo alone clearly establishes how bitter the members were about the attitude of those members who were trying to control the affairs of the Bar on political lines.

It was a tragedy that a small percentage of members who have no platform to perform on to exhibit their nuisance value used the meetings of the Bar Council to disrupt meetings so as to foster their own cause and obtain favours from their political masters. They were under the impression that the silence of the majority of the members was a portent of acquiescence. How wrong they were. The Bar became so politicised that the attention of the media was drawn to it for the wrong reason.

Hitherto the public acknowledged the Bar as the ultimate refuge of the oppressed, by regimes past and present that come to office assuring the liberties of the subject but violate them with impunity.

It was the Bar that became the ultimate villain of the piece, when the politicians failed to manipulate the members. The governments even while consisting of eminent members of the Bar, permitted their security forces and other agents to abduct lawyers, kill them and facilely defended their actions.

The media encouraged the Bar as the foremost protector of human rights in this country.

The independence of the Bar is of such an importance to the well being of the Bar that no government should even strive to stifle it.

It was not long ago, that a massive campaign was organised in support of a candidate. A number of supporters moving around in Pajero's and others armed with everything else other than automatic weapons were seen at the Bar elections.

Soon after the elections these cohorts vanished in their Pajero's as the result was a devastating blow they received from the electorate. Though the candidate did not identify himself as a political progeny, the members felt that if elected, he may align with the government in office, and defeated him.

This is the character of the Bar. The members detest anyone from any position politicising the Bar.

The move in appointing an associate of the Justice Minister to the highest-court in the land, and immediately thereafter the summary sacking of the secretary of the Justice Ministry, Dhara Wijetillake for Ônot towing the line' only added to the feel among lawyers that there was too much politics in the Bar and the Judiciary for the good of anyone.

Of those who vigorously campaigned for A. K. Premadasa when the signs of defeat were ominous, some of his supporters resorted to shameful exhibition of canvassing. They said you have only one choice.

Whether you want to support Nalanda Ellawala or Punchinilame.

If one is with Nalanda Ellawala then he should support Mr. Premadasa and if you are with Punchinilame then support Mr. de Silva.

Then there was another scene of a lady lawyer who was a witness in a divorce case and sobbing to say that she was humiliated by Mr. de Silva in the witness box.

All these gimmicks did not find favour with the more discerning members of the Bar.

It was such a resounding blow that Mr. Premadasa got less than 500 votes from a total poll of 2012 members i.e. only 24% of the total votes cast in Colombo. In Matara, Mr. Premadasa's hometown he came third in the race polling 22 votes as against 38 votes for Mr. Prematileke.

At Attanagalla, Gampaha, Horana, Anura-dhapura, Kandy, Kurune-gala Mr. Romesh de Silva and many other Bars won handsomely.

Mr. Premadasa was victorious at Badulla, Bala-pitiya, Gampola, Hamban-tota, Kuliyapitiya, Matale, Negombo, Panadura, Ratna-pura and Wattala but the majorities were slim ones.

The voting pattern clearly establishes that even if politicians fool some of the people all of the time and all of the people for some of the time, they cannot fool in Bar for any length of time.

Kujantha Arey: Friends, Sri Lankan Barmen, lend me your ears,
I come to bury the Pulannas and Palkaviyas, not to denounce them,
The evil that the Palkaviyas did lives after them
The songs they sang are oft buried with their bones;
So let it be with Pulannas and Palkaviyas,
The noble Barmen have told you they were politicking,
If it was so, it was a grievous fault,
And grievously have Gonthilaka's, Hambacons, Wanamadus,
Walpanawas and No pass wickys, answer'd it.
Here under leave of Brumesh and the rest,
For Brumesh is an honourable man;
So are they all, all honourable Barkeepers;
Come I to speak at the Palkaviyas' funeral,
They were my friends, long before, they lost an election,
Where Pupul won with a handsome majority,
But Barmen never did politicking,
and did such the government and were manoeuvred by likes of Bola Balas

Justice must not only be done but seem to be done
according to my way, said Chabbakka
No said the Prefects we will do justice according to law
Teach you a lesson Chabbakka said.
And Pottani sir appointed a new prefect.
Sheeba is an honourable girl
She has brought many honours local and foreign,
You are crying foul Palkaviyas said
Because she is from a rural background
She has not attended school in Rome,
No said the Barmen we cannot permit Pottani Sir and Chabbakka
To have their own way.
Pottani Sir has brought many degrees home to Rome,
Whose discourses did the TV's fill.
But today Murder becomes Self Defence
Looting becomes public rage, and Epicurean taste becomes
Sexual desires.
The Bola Bala and Pottani Sir used neglected Pulanna's
and Palkaviyas and with the helplessness of Dalla managed to sabotage the Protest
The noble barmen selected their warrior Brumesh
Brumesh struck a deadly blow with the help of the noble and learned barmen
It was a blow that vanquished Pottani Sir's pride,
Bola Bala's childish pranks
and for the Palkaviyas and Pulannas
Oh! what a fall was there for all of them, my countrymen
Learned a lesson of a life time.
Never to politicise the Bar, never to castigate
the prefects, to appoint suitable managers to suitable posts.
and never to disrupt meetings with the aid of Palkaviyas.

(With apologies to Shekus Perera)

		President 		    Secretary 
		Romesh	AKP	G.P.	Dayaratna	Mahinda
Ampara		5	1	1	
Anuradhapura	29	9	8
Avissawella	23	20	5	35	14
Attanagalle	14	6	2	12	11
Balapitiya	5	14	7	18	8
Balangoda	6	6	5	14	3
Bandarawela	8	4	0	11	1
Badulla	13	14	0	22	5
Batticaloa	11	5	1	11	6
Chavakacheri	-	-	-	-	-
Colombo		1327	436	212	1659	360
Chilaw		10	6	2	13	5
Gampaha		71	29	15	83	30
Gampola		7	8	0	11	4
Gangodawila	9	4	1	-	-
Galle		48	27	9	75	-
Hatton		8	2	0	9	-
Hambantota	9	16	3	24	4
Homagama
Horana		12	8	4	16	8
Jaffna		-	-	-	-	-
Kalutara	41	8	7	
Kandy		75	47	7	97	30
Kalmunai
Kegalle		33	12	7	49	6
Kuliyapitiya	14	18	9	-	-
Kurunegala	55	33	4	68	21
Maho
Mannar		1	0	0	1	0
Marawila
Matale		9	14	2	17	8
Matara		24	22	38	63	19
Matugama	16	8	6	29	2
Mawanella
Mt. Lavinia	29	22	0	
Moratuwa	4	4	3	11	0
Negombo	36	45	0	
Nuwara Eliya	9	3	0	9	3
Polonnaruwa	9	4	1	12	2
Point-Pedro	
Panadura	16	21	15	40	10
Pugoda      		2	4	0
Puttalam
Ratnapura	14	25	0	28	12
Tangalle	5	4	10	17	2
Trinco
Vavuniya	0	1	0	0	1
Wattala		4	5	1	5	5

By Praful Bidwai

SUCH is the widespread despondency about the prospect of the corrupt ever being brought to book in this country that the public has remained rather unexcited at the transfer of 500 important papers in the Bofors case from the Swiss courts to the Central Bureau of Investigation. The public cannot be blamed for this.

Finance Minister P. Chidambaram made the principal official statement on Bofors in Parliament in July 1989, which was regarded as an attempt to downplay and hush up the scandal. Less than two years later, he wrote in the press: "It would be an insult to his memory if the Bofors investigation against Rajiv Gandhi is allowed to continue. The government must put an end to this investigation now and close the matter." It bears recalling that Mr. Chidambaram was also the author of the Single Directive of 1988 which prevents the CBI from investigating complaints against senior officials without prior clearance of the government.

The point of recounting this is not so much to level accusations against particular individuals as to emphasise the need to eliminate the ground for a conflict of interest between different roles of government functionaries, and to ensure that a unique opportunity to pursue the Bofors investigation to its conclusion is not lost. It is of the utmost importance that the CBI is allowed to investigate the Bofors ease without interference from the government. Bofors is no ordinary scandal. It is a metaphor for corruption at the highest levels, and a long, shameful story of attempts to protect the guilty and hoodwink the public. Indeed, the Bofors drama is nothing if not the public's struggle for accountability, and against the erasure of its memory. It must be treated as a test case, a paradigm, an exemplar.

The transferred documents by all accounts contain definitive, irrefutable proof that Bofors paid bribes (not "commissions" or winding-up charges) to secure the $1.3 billion Howitzer contract. They also contain specific names, and accounts of transactions related to coded accounts such as "Lotus" and "Tulip". The papers must trigger immediate action on the CBI's part: issue an international arrest warrant against the bribes' recipients, interrogate Bofors officials, including Mr. Martin Ardbo, on whom, why and how they bribed, question Mr. Ottavio Quattrochi and Mr. Win Chadha. This should lead to early trial and conviction of several key individuals.

An effort must be supplemented by other measures to deter and punish corruption and promote transparent, accountable governance. First, the biggest hurdle to accountability, viz. immunity of political leaders and high officials from prosecution, must be removed and a radically redrafted Lokpal Bill passed. It should not be necessary for a citizen to secure the government's consent to sue a senior bureaucrat or minister. So long as frivolous complaints are punished, there should be no hesitation over removal of unwarranted immunities that belong to the colonial period, and which were designed to insulate officialdom from public scrutiny.

A Freedom of Information Act is an imperative. This must guarantee the citizen's right to information on all matters of public significance, including government decisions, their rationale, and the process of policy formulation and revision. Exceptions to this must be minimal and rare. The right to classify documents as "secret" or "confidential" must be reserved for cabinet ministers and senior bureaucrats alone. The reasons for classification must be recorded. The right to information is fundamental and derives from the principle that whatever is in the public domain is the public's, the people must have access to it.

However, there is another measure that could effectively translate the notion of accountability into an obligation for those who are in power. All secretaries to the government should be made to send periodic reports (say, every three or six months) on the functioning of their departments to the Prime Minister (chief minister in the case of a state), through the cabinet secretary. These must detail all cases of malfeasance, irregularity and corruption (or their absence). Such reports must be made public. Any court of law, as well as legislators, must be empowered to summon them and demand to know what action has been taken on them. If an official misreports or suppresses facts, he or she must be severely punished.-Courtesy - Times of India