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16th March 1997

Unity and progress of the Bar and legal profession

By Mudliyar

In 1973, the National State Assembly enacted the Administration of Justice Law. This en actment came into force on January 1, 1974. The most important of all the changes that were brought about by these legal reforms was the fusion of the legal profession. Prior to this the legal profession consisted of two branches-advocates and proctors - recognised by the Charter of Justice of 1892 and by a subsequent Charter till 1983. Thereafter the two branches of the profession were recognised by the Courts Ordinance No. 1 of 1989.

Felix Dias Bandaranaike, the Minister of Justice under the United Front Government decided to amalgamate the two branches of the profession. After the fusion it became necessary to have one Association for both proctors and advocates.

The advocates and the proctors had their respective associations, the Bar Council and the Incorporated Law Society of Ceylon. The Law Society of Sri Lanka and the Bar Council resolved to form an association called the Bar Association. To frame a constitution for the Bar Association a joint committee consisting of members of the Bar Council and the incorporated Law Society was formed.

After the formation of the Bar Association, it became necessary to hold an election for the posts of President and Secretary from the entire membership. An election was held for the first time to elect a President and a Secretary, and this was held on May 18, 1994.

H.W. Jayewardene, Q.C. and T. Sri Ramanathan, a former President of the Incorporated Law Society of Ceylon, contested this most coveted post; Desmond Fernando, the late U.L.M. Farook, M.M. Fuard contested for the post Secretary. T. Sri Ramanathan was known to be a popular candidate. Whenever elections were held for the Presidency of the Incorporated Law Society, Mr. Sri Ramanathan often defeated the Sinhala candidates both at Galle and Jaffna polling stations. Mr. Sri Ramanathan was a go-getter. He entertained the lawyers lavishly. Justice Minister Felix Dias Bandaranaike, backed Sri Ramanathan. At that time the popularity of the United Front Government was on the wane. Bandaranaike himself had contributed to this predicament in no small measure. He did not want Dr. H.W. Jayewardene, the brother of the Opposition Leader to become the first President of the Bar Association. A picture of Mr. Bandaranaike with Mr. Sri Ramanathan was published in the "Daily News" just before the elections.

Dr. Jayewardene was considered a proud person who did not care to smile even with his contemporaries and specially the junior members of the Bar. E.R.S.R. Coomarasamy was the Chairman of the Petroleum Corporation. Just before the elections a letter purported to have been written by Dr. Coomarasamy was circulated among the Tamil members of the profession requesting the Tamil members to vote for the Tamil candidate. Communal politics raised its ugly head even at the first election of the Bar Council, where members are supposed to be learned and belong to a noble profession . There was word-of-mouth canvassing that went on amongst the members to the effect that everything must be done to defeat Dr. Jayewardene. Like today there were members who depended for their economic survival, on the Government. They were considered mediocre learned friends and had to sit in canteens and in the lobby expecting some one to retain them, and often go home without a retainer. They joined lawyers' associations of the two main political parties hoping that the party they supported would come to office and they would get a brief from a Corporation. Some of the fees charged by them from Corporations and other bodies were astronomical. If they quoted these fees to their normal clients if they had any, they would have immediately requested these lawyers to get their head examined by a psychiatrist. So these persons wanted to ensure that the candidate sponsored by their Minister won for their own survival.

These attempts were well known to the members of the profession but, like today, there were very senior members who were in the Government who supported Dr. H.W. Jayewardene on the basis that he was the better candidate. Mr. M. Sivasithambaram, a member of the Tamil Congress, and a very powerful politician who represented the Tamil ethos, at that time was one who openly supported the candidature of Dr. Jayewardene.

Dr. Jayewardene rose above the level of a petty village chieftain. After the victory he declared that he was the President of the entire Bar irrespective of whether any one voted for him or not. He said that he would listen to all shades of opinion before making a decision. The motives and the pettiness of those who carried a campaign against him must now be swept under the carpet. The Minister of Justice was one of the most important cabinet ministers, and the Bar Association had to have a cordial relationship with him. There would be no convocation without the Minister.

Whatever the differences the members of the Bar had with their Minister, who at that time even threatened the profession by trying to introduce barefoot lawyers, was received with warmth. The Bar headed by Dr. Jayewardene introduced a very healthy tradition, that is, to work in co-operation with the Minister of Justice.

But that did not mean that the Bar became subordinated to any one, nor did it act to please the idiosyncrasies of the Ministers and political agendas of governments. It is the repository of those who are learned and brave and do not wilt even under death threats from forces supportive or opposed to governments to do their duty by the people.

The first convocation was held on June 14, 1975 at Navarangahala. The guests included the Chief Justice, the Minister of Justice, the members of the Diplomatic Corps and members of the Judiciary. The Minister and the Chief Justice Victor Tennekoon and others were seated in the podium with Dr. Jayewardene making his historic address in which he said:

"The National State Assembly exercises its judicial power through courts and other institutions created by it and except for such directives that the Judiciary may receive through the instrumentality of a legislature the Judiciary of the country is independent. It is the bounden duty of each and every member of the Judiciary of this country, not only to honour and respect but also to safeguard and protect that independence.

"The Bar of this country did give the Judiciary all that assistance which it has in its power to give to that end so as to ensure that at no time in the period could it be said that our Judiciary or any single member thereof is indeed made of the executive.

"The Hon. Minister said that the independence of the Judiciary has been protected in the constitution with the appropriate sanctions for any interference with its independence.

"That is, with all due respect to you, Sir, not the precise moment of the independence that we think of. It is not the independence that is written in the law, it is the independence of Judges which must exist as a fact and is not the mere printed words of the text of the law that may prevent interference with the independence of the Judiciary. If the legislature pass laws which are going to affect the Judiciary, the Judiciary must accept it, but it is important for us that the Judiciary must be free from any possible pin pricks from the executive, as long as the Judiciary are left free from that approach to the performance of their functions by the executive, then the independence of the Judiciary is secure.

"I can assure those to whom the people of this country have entrusted the responsibility of governing it and those to whom that responsibility may fall in the future, that the Bar of this country will continue to give its co-operation in all matters which it thinks is for the benefit of our people; but I wish also to state, as I have said before, that where we think that any proposed action of any Government is against the democratic Rights of our people or is prejudicial to our profession, the Bar will not hesitate, not only to express its views promptly, but also take such action as it may consider proper to oppose any undemocratic move or one detrimental to the interest of the profession.

"It does not matter to us which "ism" motivates the government which may be in power we will not fail or falter in our duty. Though Mr. Jayewardene had a large number of juniors and apprentices who worked tirelessly for his elections he did not mention their names, or thank them individually but he did mention the name of the late Mr. Nimal Senanayake.

"You will I know, permit me to mention one of our members by name. Mr. Nimal Senanayake has, at great personal sacrifice, made his chambers available to us in addition to the advice and assistance that he, like many others, have given to us. On behalf of our association, I think we must thank him for this gesture."

Dr. Jayewardene's address at the convocation, and in reply to the speech of the Minister of Justice was the beginning of an epoch where like their colleagues in the other parts of the world the Bar resolutely fought against any kind of political intervention in the administration of justice. The Bar extended its friendly hands to the people of this country. Unlike any other political party Dr. Jayewardene declared that the Bar has a duty towards our people. Not by reason of an election to any post in the National State Assembly but by the reason of education, knowledge and experience. It is these qualities that made the enormous gap between the politicians and the professionals. The politicians are beholden to the people who voted them to power and to party that gave them nominations. The Bar is beholden to none. It is the duty cast on the lawyers of this country, if that opportunity were given, without bias or discrimination, to participate at every level in national life and in government is more particular so in the administration of justice, which is their specialised field. The Minister of Justice will formulate laws and procedure and find the infrastructure to house the courts. When the Ministers strive to inter-meddle with elections and appointments to the Judiciary then the Bar will come hard on them and try to preserve their independence.

If the Minister did not use his hidden hands in the affairs of the election then there was a possibility that Mr. Sri Ramanathan would have won it with his personal charisma and popularity.

Dr. Jayewardene said, "Though it may have been said most unfairly that I have been inaccessible, I wish to tell you here and now that I have not been unaware or unmindful of the various problems which confront the Bar."

Most Presidents when elected speak of the independence of the Judiciary which is the foundation of a civilised society.

But often to the regret of many who cheered their Presidents when they spoke of these cherished rights at convocations and other public seminars, they hid their heads in shame when the leaders did not do anything to prevent such attacks on the Judiciary.

It was the members of the Bar who always stood firmly to defeat such machinations of cliques who are blinded by political faith and oblivious to the obvious attacks on justice.

Similarly, the politicians who, when in the opposition, assure the voters their basic freedoms like the freedom of speech, freedom for the media and the independence of the Judiciary, completely reverse their role when in power.

The political power that they enjoy is so tainted and corrupt that they metamorphose from an angel when out of power to a Satan when in power.

Once in power all the freedoms that they assured to the people are thrown to the wolves.

Again when those learned men who spoke at length about protecting the independence of the Judiciary become the very persons who wanted Judges suborned.

When these things happen it is the independent Bar who relentlessly fought against these common ailments.

It is the very foundation of a dharmista principle of non interference with the Judiciary on which the late J.R. Jayewardene came to power was ignored when the new constitution was formulated and some Judges who did not find favour with the executive were removed.

Finally, the Bar has to be very vigilant. The executive committee must become the watch dogs of the independence of the Judiciary.

The President and the Executive Committee must not permit politicians, however powerful and whatever rank they hold, to attack the Judges openly, publicly and rouse the feelings of the people against them.

The Executive Committee and the President will have to take meaningful steps to show dissent and express condemnation of any inroads made by anyone into the fundamental of all freedoms, the freedom to air their grievances in a court of law and to obtain an impartial hearing and secure an order which is not tampered with by political and/or any other consideration.

Dr. Jayewardene as a President during his tenure of office became such a powerful person and the Government in power respected his vision and his commitment to the Judiciary.

He said, "a dormant profession is now coming to life to play its part in Lankan socio-economic changes. I have confidence in my profession that each and every one of you, the men and women in whose hands the future lies and in those of a riper vintage, that they will together work for our unity and progress.

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