Hulftsdorp Hill

11th October 1998

Crisis in judiciary and the five Silvas

By Mudliyar

In the dust-filled antiquated tomes heroes are found. The heroes if there were any in the legal profession were crusaders against oppression.

They fought the tyrannical rulers to liberate the people from oppression. They strode like colossi and fought injustice. Sturdy independence was their forte. They could not be forced to succumb to pressure They were men of unimpeachable integrity and high moral character. They refused to become suckers to anyone and acted according to their conscience. Have we met them in our real lives, or are they characters hidden in the tomes of adulatory biographers, who had the skill by their writing to remould those characters according to what they have been taught by their teachers of the qualities of great men.

It is increasingly a sad spectacle that the Bar has become bereft of such great men. In real life, we meet great orators who ably speak of the virtues of independence, liberty, and justice but cringe most obsequiously when the occasion demands.

Lets not blame our leaders for the wanton disregard of the virtues which we dearly want them to uphold. Do not forget, it's we who elected them, and they represent our psyche and the cultural and legal ethos we represent.

The Mahanama Tilekeratne episode is no different to other crises that the profession underwent. There was unity of purpose and utter disgust with which the authorities acted to suppress human freedom; during the killing of Wijedasa Liyanaarchchi, like genie lighting the eternal lamp and exorcising the spirits to create heroes from the mythical beings living in the tomes of law libraries, two or three heroes were born.

The then leader of the Bar, H. L. De Silva P.C., elected by sheer accident, contested the Presidency on the invitation of H. W Jayewardene. Unassuming and a shy President of the Bar, he was accused of not sparing a smile, and being centred round his books and the chambers, and was virtually thrown to the ravenous wolves in the profession.

He metamorphosed into a hero, the diminutive De Silva became a giant. Refusing to cave into the pressures brought by the unidentified gunmen when murder was the order of the day, he summoned the executive committee members and told them the importance of adopting the resolution proposed by the members of the Colombo Magistrates' Court lawyers, who were in the forefront of the struggle, not to appear for the Police unless and until all the perpetrators to the crime were charged in a court of law.

He refused to accept the advice of others in the executive committee, who had many faceted interests to de-escalate the crisis and support the establishment.

Others acted for purely selfish and monetary reasons. They were habitual defenders of the police and having received astronomical fees, could not bear to lose the same and advised their agents of the executive committee to oppose such drastic moves.

But H. L. De Silva was unmoved he dismissed such self-serving notions, and said extreme conditions needed extreme measure to circumvent them. There was no returning to the established thresholds.

Hermon Lenoard De Silva never went back on his word. Never got excited by the activities of the goons, never made overtures and speeches to please the members and the press. But the words he spoke were to the point. No one could speak to him of the importance of changing his decision and hunting with the establishment. It was decided to boycott the ceremonial opening of the Superior Courts complex, the brainchild of his mentor, Dr. H.W. Jayewardene. H.L. De Silva decided not to attend the opening.

Then there was another hero, Wijedasa Liyanaarachchi's senior, Ranjit Abeysuriya. The Bar decided that he should appear to watch the interest of the deceased's family.

Mr. Abeysuriya not only appeared on behalf of the family but also on behalf of the Bar. He did not cringe in fear or for loss of practice or for not being able to get a bail application through. It was necessary to protect the interest of the black-coated gentry from abuses and aggression of those who opposed the fundamental freedoms.

Whether the gun was directed at human rights lawyers or not it was considered to be directed at the profession. It was necessary to fight against such abuses and such oppressive measures whether or not the Attorney-General and the department strove to protect the villains. President's Counsel Ranjit Abeysuriya spent his valuable time and money to protect the freedom of the profession. Except the abusers the majority in the police supported the Bar. The majority in the police force did not support the methods employed by some of their colleagues who had become political stooges to maintain the government by killing.

Similarly it was a pure accident that Mr. Abeysuriya was made to handle the fundamental rights application of Mahanama Tilekeratne. Every one was agitated by the unlawful arrest of Mr. Tilekeratne by Bandula (Show) Wickremasinghe.

The manner in which 'Show' Wickremasinghe handled the arrest, was such that almost every one in the department has disowned him and his actions. But as soon as other information leaked out and especially when the 'Sunday Observer' reported from police sources that the police acted on the advise of the Attorney-General, and then the Attorney-General himself to the 'Lankadeepa' tried to justify the arrest under the normal law of the country, there was a reasonable doubt in the minds the average lawyer as to who was really behind the illegal arrest. Though no one was prepared to sympathise with 'Show', everyone was concerned with the involvement of the Attorney-General.

The then government under whose alleged direction Wijedasa Liyanaarchchi was tortured to death, met at an Emergency session and justified the killing. The rationale was that in Liyanaarachchi's confession to the police he had stated that he was the head of the notorious 'Kangaroo Court', which had passed death sentence on Vijaya Kumaratunga.

The government media especially the Lake House group of papers had a vigorous campaign to thwart the initiative of the lawyers. Lalith Athulathmudali was in the forefront and the spokesman for the government.

Similarly Mr. Tillekeratne's statement made to the CID on the notorious fourth floor, has now been published in full, casting aspersions on the conduct of Mr. Tillekeratne as a judge. The accused's statement is a confidential document. There is a view amongst many members of the legal fraternity, that Mr. Tillekeratne's case should now be dismissed as a mistrial due to this publication.

The allegation is pointed at the CID and possibly some miscreants of the AG's department. By these manoeuvres the perpetrators of this mischief are striving to divide the legal profession or make them think and act differently. A decade ago the legal profession was not a tool of the JVP, but they came out strongly against the killing of a colleague, and the efforts of the police to stifle the protest, became a damp squib, as then the Bar was ably led by leaders.

Today politicians are still trying to emulate the past deeds and use the same methods of 'disinformation' and stage a comeback, and are supplying material to the more selfish and self centred members to carry out a silent campaign, questioning the validity of protesting and picketing for and behalf of a judge who is facing several allegations.

The lobby has become powerful as leaders of the bar lack the leadership qualities expected of them. Has the profession forgotten the basic fact that they are not protesting against the arrest of a person who was arrested, and who was framed, and who suffered, but against the manner it was done — not by a mere police officer, but now the question is whether it was done with the sanction of the highest law officer of the land, Attorney General Sarath Nanda Silva himself, the bulwark who in the past glorious days of the department, took decisions to protect the life, limb and liberty of the subject from unwarranted persecutions of the police.

The Attorney-General who used his hallowed discretion to prevent such abuse by the police and the CID, is now being accused of being a politician in quasi-judicial garb, acting in collusion with the police, though Mr. Sarath Silva himself strenuously denies the charge.

The only reason why the President of the Bar met the Attorney-General to prevent the arrest was because the Attorney-General had the power to do so.

When the Attorney-General of this country refused to accede to a legitimate request of the president of the Bar, and things took such a pernicious turn of events with the police allegedly armed with the sanction and the approval of the highest law officer of the country acted with renewed vigour, as much as the goon squads of yesteryear, the crisis deepened, involving five 'Silva's, G.P.S. de Silva, Sarath Nanda Silva, Romesh de Silva, C. R. De Silva and Punya de Silva.

To this crisis was thrown Mr. Abeysuriya. An outstanding criminal lawyer, he was invited by the president himself, to help the executive committee to decide what action the Bar ought to take in this most tragic predicament the association has fallen into. The president of the Bar was unable to prevent an illegal arrest.

The Attorney-General was thanked by the President only for having given him an immediate appointment. Gone were the days when not the Attorney-General, but the President of the country immediately responded to a telephone call by the president, or the secretary of the Bar Association.

Gone were the days when the president of the Bar dictated the wordings of the apology to the Bar Association , to be read publicly by one of the most powerful cabinet minister Mr. Ranjan Wijeratna. Gone were the days when Sunil De Silva, the then Attorney General declined an invitation as the chief guest, when the Bar even without notice to him passed a resolution that no member of the Association should participate at a seminar conducted by a banker to propagate the virtues of the Debt Recovery law.

"To be or not to be, that is the question" said Hamlet. To give or not to give the affidavit is the matter that tormented Mr. Romesh de Silva. It was Romesh de Silva who would have felt like a eunuch in an Arabian harem when Sarath Silva his friend refused to grant him any concessions, when he wanted him to intervene on behalf of Mr. Tillekeratne. Then Romesh de Silva found that not only was his appeal disallowed, but his members who were armed with the order of court, were thrown aside, by 'Show' allegedly, on the advice of Sarath Silva.

First Romesh de Silva personally wanted to appear for the judge as the president of the Bar Association. It was turned down by the Exco. Then it was Romesh de Silva who invited Mr. Abeysuriya to the meeting of the Executive Committee, and wanted Mr. Abeysuriya to take immediate action to file a Fundamental Rights application. It was Romesh de Silva who took the judge to Mr. Abeysuriya and introduced him. It was Romesh de Silva who undertook to find junior counsel for Mr. Abeysuriya for drafting the papers.

It was Romesh de Silva who undertook to give the affidavit on the role he played, the discussion he had with his friend Sarath Silva and the Chief Justice. It was Romesh de Silva who wanted Mr. Abeysuriya to write to him officially through an instructing attorney requesting an affidavit. As instructed, Priyadharshini Dias wrote to Romesh de Silva on September 24, requesting Romesh de Silva to give an affidavit on the basis of the uncontroverted interview given by Romesh de Silva to the Sunday Leader.

As the affidavit was not forthcoming and Romesh Silva denying the story which appeared in the 'Sunday Times' that the Bar Association was supporting the application for a fundamental rights petition by the judge, to be filed by Ranjit Abeysuriya, Mr. Abeysuriya wrote to Romesh de Silva on September 30, stating clearly that he attended the meeting of the Executive Committee on September 11 at the OPA on the invitation of Romesh de Silva, and that as requested by Romesh de Silva, he agreed to have a consultation with Mr. Tillekeratne and reminding him of the request made by his instructing Attorney for an affidavit.

At the same time Mr. Abeysuriya said "Upon a consideration and evaluation of all the relevant material I have formed the view that a Fundamental Rights Application should be filed on behalf of Mr. Tillekeratne, High Court Judge, Colombo in the Supreme Court with regard to the infringement of the Fundamental Rights of the said Judge guaranteed to him by Article 11,12(1), 13(2) of the Constitution" and he said among the respondents in his view is Sarath Nanda Silva named as the fourth respondent. Still no affidavit was forthcoming.

"By this time Romesh de Silva has gone public and told the entire country over TNL 'Inside Story", about the discussion he had with Mr. Sarath Nanda Silva and the Chief Justice and re-told the same tale to the Bar Council. Later when there was no response Mr. Abeysuriya had telephoned Mr. Silva and told him" Romesh we will be the laughing stock of the country. The lawyers will be accused of being weak kneed and sweeping things under the carpet"

When the draft affidavit of Romesh de Silva was finally sent it only said that Romesh de Silva had a discussion with the Attorney-General.

But Romesh de Silva did depose about the discussion he had with the Chief Justice. The reason why he adopted a different attitude to the conversation he had with Sarath Silva and the Chief Justice was not obvious to many.

Later Romesh de Silva mentioned the names of three members of the executive committee and said that they did not want him to swear any affidavit.

On the other hand at least one member had allegedly denied that he advised Romesh de Silva not to give an affidavit, instead he has insisted Romesh de Silva should give the affidavit as promised.

Mr. Abeysuriya is not a weak kneed lawyer, and never had earned the reputation of sweeping things under the carpet.

It was during President Premadasa's regime that he appeared for Gamini Dissanayake. It was during JR's regime that he appeared for Wijedasa Liyanarachchi. He remains committed to the independence of the judiciary. If Mr. Abeysuriya was not invited to handle the rights case, the whole Bar would have been the subject of ridicule and contempt of the people of this country.

At least from this crisis we know of few lawyers who will oppose any foe however powerful and however important, support any friend however small and however insignificant in the quest for justice; and more importantly lawyers who will sincerely oppose any friend however dear, support any foe however bitter, to uphold the principle for which all members of the bar strive. One of them is none other than Deshamanaya Ranjit Abeysuriya PC.

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