From the beginning this column carried out a campaign to educate the public of the inherent dangers of the so called constitutional amendments.
We have informed the public that they should agree to rally round the Supreme Court and take to the streets if the government takes steps to interfere with the tenure of their service.
One of the most important hidden agendas of the constitutional reforms would be to remove judges, whom the government thinks is hostile to it. This is exactly what JRJ did when his government attained 2/3rds majority. Though he was the son of a Supreme Court Judge, and a great admirer of Gandhi’s non violence, in the guise of a new Constitution he sacked some judges of the Superior Courts, who he thought were politically tilted towards the SLFP.
We have in unequivocal terms stated that this government has on matters connected with the administration of justice tended to tilt towards that JRJ tradition.
If a judge does not decide against the government in a case where the facts and circumstances weigh heavily against the government and consistently refuses to grant relief against the oppressive state machinery he cannot be a good judge.
He is biased and would have relegated his supreme duty to Satan and sacrificed the oppressed before the altar of justice to placate the human deity who would patronize him in the future by appointing him to high office after retirement.
When the judges do not succumb to the evil machinations of the government, and deliver judgments according to issues before them and if necessary against the government, then the members of the government, all and sundry, the learned, the not so learned and even intellectual imbeciles would attack the system of justice and judges. But the people will know that the courts had ensured that justice would prevail.
No government has been as critical of the judiciary like this government, when the Supreme Court has delivered judgments against the government.
We are relieved that our campaign to ensure the continuity of the tenure of service of the Judges of the Supreme Court, has not fallen by the wayside. The Sunday Observer in its issue of the 15th February announces in the front page lead “President to become PM, Judges will continue”
Then adds in the body “the incumbent judges of the Supreme Court, Appeal Court, High Court and other major and minor judiciary will continue to function as before after the promulgation of the New Constitution”. This is indeed a victory for all those who would safeguard with their life the independence of judiciary.
Mrs. Shiranee Tilakawardane is the Judge who sits in the High Court No. 1. It has been customary that all Admiralty cases come before Court No. 1. The Admiralty cases concern the arrest of ships which are in Sri Lankan territorial waters and is inside or outside the Colombo Harbour mainly to recover the damages from the company.
As there are only very few lawyers, both Advocates and instructing lawyers, who have a specialized knowledge in this field, the fees are astronomical. The expenses incurred by both the Petitioner and the Respondents are extremely high, as expenses are calculated in US dollars. Specialist witnesses are flown from abroad to give evidence at tremendous cost. The backlog of cases and delays have become so endemic that these cases needed special methods to overcome these delays.
When one goes to Galle Face Green one could behold queues of ships waiting to enter the Port which has become a common sight. It has been found that some of the ships have been arrested by the Harbour Master on the orders of the Admiralty Court and are awaiting Court to determine whether the ships should be sold or released. The Government also incurs unnecessary expenses due to these ships being anchored outside the port.
When the British framed their laws several decades ago, the British system was
mainly concerned with the Rule of Law and justice and equity. The necessity of proving documents by calling a number of witnesses entailed long delays. The British have changed their laws to suit the modern day commercial world. But we still prod along with archaic laws which results in inevitable delays.
Lord Denning said “My root belief is that the proper role of the Judge is to do Justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the Judge to do all he legitimately can to avoid that rule – or even to change it – so as to do justice in the instant case before him”
This is exactly what Mrs. Shiranee Tilakawardane did on the 12th of February. Mrs. Tilakawardane one day issued a circular to all Counsels and registered Attorneys who regularly practice in that Court and invited them to the Taj Samudra Hotel for a discussion followed by tea and coffee. In response to this invitation, a number of President’s Counsel including Mr. Romesh de Silva, Mr. Shibly Aziz, Mr. Waruna Basnayake and Mr. K. Kanag Isvaran and a number of instructing Attorneys were present. The total number of lawyers who were present on that day were about thirty.
The main concern of Mrs. Tilakawardane was the unnecessary delay in Admiralty Cases and the tremendous expense incurred by the Government and the parties to the case.
She formulated her plan to avoid unnecessary delays so that bringing witnesses from abroad could be avoided. It was her view that there should be a pre-trial stage where lawyers for both parties meet the Judge and discuss preliminary issues so that many matters relating to documents and witnesses and other issues could be admitted before the Judge, which would avoid proving these statements and documents in Court. The trial would be confined to the issues that had not been admitted by the parties to the dispute. It was her belief that the trials could be expedited and concluded within the shortest possible time which will be helpful to the litigants and to the lawyers.
All but one President’s Counsel present agreed with the suggestions of the High Court Judge, and it was agreed that these pre-trials could be had in the morning before the Court resumes to do its routine functions. Mr. Romesh de Silva, P.C., the President of the Bar Association was not in agreement and had reservations about the suggestions of the High Court Judge.
Perhaps he may have been concerned with the principle that justice hurried is justice buried. After the discussions Mrs Shiranee Tilakawardane paid the bill for the hall and for the tea and coffee that were served. Let us not discuss the merits and demerits of this extraordinary decision taken by Mrs. Tilakawardane, but all persons who would support progress as opposed to retrogression would cheer Mrs. Tilakawardane for the bold and unconventional stand she took in inviting the lawyers for a discussion.
This may have been the first time that a Judge has invited lawyers who practices before her for tea and discussion mainly to obtain their responses and co-operation to avoid law’s delays. After this decision was taken Mrs. Tilakawardane has disposed of a number of Admiralty cases which resulted in the selling of three ships and two trawlers which had been anchored outside the harbour for a number of months.
The lawyers who practice exclusively in the High Court of Colombo formed an Association calling it ‘The High Court Lawyers Association’. Recently Mr. D. Jayawickrama and Mr. P.H.K. Kulathilaka were promoted by the President to the Court of Appeal.
The Ceremonial Court of the Court of Appeal was insufficient to hold the lawyers who attended the ceremonial sittings.
Mr. D. Jayawickrama is popular Judge and the Bar loves to appear before him. Mr. Kulathilaka was another High Court Judge before whom the members found no tension in that Court. The High Court Lawyers Association decided to accord a farewell to these two Judges.
The High Court lawyers found that there was no difficulty in collecting money from the members for the farewell. When they collected a sufficient amount of money, the office bearers went to invite Mr. Jayawickrama for the farewell and wanted a suitable date convenient to him to host him at a five star hotel.
Mr. Jayawickrama was naturally pleased with the invitation and casually asked the office bearers how much money they had collected. They said it was over One Hundred thousand Rupees. Mr. Jayawickrama then in a very friendly manner told the office bearers that they must make good use of this money and said that it was a waste to spend such a large amount of money for a farewell.
The office bearers were flabbergasted, and one of them casually asked Mr. Jayawickrama where this money should be contributed. The office bearers must have thought that being a strong Buddhist and being a person from Kandy Mr. Jayawickrema would suggest that the money should be spent for the restoration of the Dalada Maligawa, but he took every one by surprise when he indicated that the money should be given to the Legal Aid Commission. According to him.
The Legal Aid Commission was doing an outstanding service to the poor litigants of this country. He made it a point to mention the fact that Mr. Leslie Abeyasekera, a retired High Court Judge is now the Director of the Legal Aid Commission. He has heard excellent reports on what they have achieved.
The Government only gave a paltry sum to the Commission which is not even sufficient to pay the salaries of the staff and maintain the Legal Aid Commission office.
This was indeed a bolt from the blues to the office bearers. The office bearers were shocked by the advice given by Justice D. Jayawickrama. They said they would come back, but before they left his room he said that once this is done he would invite all the members of the High Court Lawyers Association for ‘drinks’ at the Eighty Club.
The Bail Act has finally been Gazetted and has become law. At the final reading of the Bill Dr. G.L. Peiris was impressed with the speech made by Sarath Kongahage, Attorney-at-Law and an appointed M.P. The Minister in reply stated that his Government was not an arrogant Government and was prepared to reconsider some of the provisions and even to bring amendments. Mr. Jayampathy Wickramaratne, one of the advisors of the Minister said that he was not in agreement with some of the provisions of the Bail Act.
The Bar Association is still in a deep slumber and is oblivious to the provisions in the Bail Act which creates detention up to one year even for a minor offence.
Though the Executive Committee has a President’s Counsel and a number of other members who mainly practice in the criminal Courts, they did not have the foresight or the time to make proposals to counter the provisions in the Bail Act. It was this column which for the first time exposed the pernicious provisions in the Bail Act.
And the Members of Parliament who are lawyers both in the Government and Opposition ranks have made representations to Dr. Peiris after having read this column. Dr. Peiris is now awaiting amendments from the Bar Association and other responsible organizations to move suitable amendments to the Bail Act.
Mr. Upali A. Goonaratne, former Secretary of the Bar Association and Mr. Chula de Silva, P.C. and Member of the first ever Executive Committee of the Bar Association has announced their intention of contesting for the Presidency of the Bar Association next year.
Mr. Kalinga Indatissa a member of the present executive committee has declared his intentions of contesting the post of Secretary of the Bar Association next year. All these three candidates have indicated their intentions almost one year before the next elections are due .
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