Hulftsdorp Hill

18th October 1998

What more can the Bar do?

By Mudliyar

Punya de Silva, the Deputy Inspector Gen-eral of the Criminal Investigation De partment was summoned before Sarath N. Silva, the Chief Law Officer of the country; the reason was the explosive situation created by some lawyers over the arrest of Mahanama Tillakeratne, High Court Judge, Colombo.

The prelude to the meeting was two contentious telephone calls. One was allegedly given by Punya de Silva to Sarath N. Silva at 5.30 p.m. on September 10, requesting further instructions from him on the arrest of Mahanama Tillakeratne, which is vehemently denied by Sarath N. Silva.

The other call is a call allegedly given by Punya de Silva to Sarath N. Silva at 8.30 p.m. informing him of the arrest of Mahanama Tillakeratne after the event. And the confusion was worse confounded when it was known that Bandula Wickramasinghe has made a note confirming that his boss Punya de Silva gave a call to the Attorney-General at 5.30 p.m.

When Punya de Silva was ordered to appear before the Attorney-General in the presence of the Additional Solicitor-General, C.R. de Silva, P.C. head of the criminal section of the Department, a team man, was also present.

As soon as the AG saw Punya de Silva, he took umbrage at Punya for having said that he (Punya) telephoned him on that day at 5.30 p.m.. Punya de Silva was stupefied and bewildered by the out burst of the Chief Law Officer of the country.

He for a moment would have wondered whether it was an incubus nightmare, or a part of a day dream which infects the Southerners after a Thovil ceremony where the Reeri Yaka plays the main role.

He remembered distinctly the telephone call and the voice of the person to whom he spoke to and the specific instructions that person gave.

The DIG maintains he gave the call not from his private office but in the presence of a large number of his deputies present at an important conference when SP Premaratne telephoned him and told him about lawyers of Mahanama Tillakeratne producing a letter and stating that the letter indicated that the warrant has been recalled.

When he was confronted he instantly denied the position of Sarath Silva and spontaneously contradicted the Chief Law Officer of the country.

But he would have got a shell shock when the Chief Law Officer unequivocally denied that he ever had a telephone conversation with him at 5.30p.m. on the 10th of September.

Within a few days, there was a dinner hosted by President Chandrika Kumaratunga, a farewell to the outgoing IGP W.B. Rajaguru. Many VIPs were present among whom was Foreign Minister Lakhsman Kadirgamar, and President's Secretary K.Balapatabendi.

At this dinner Mr. Kadirgamar informed the President of the obvious contradictions between the statements of Punya de Silva the DIG -CID and the AG Sarath Silva on the controversial telephone conversation prior to the angst of the judge.

The President who listened carefully to the two versions of the DIG and the AG on the contentious telephone call, had tended to accept the version of Punya de Silva.

These words of the President would have indeed consoled the DIG and soothed his nerves.

Mr. Kadirgamar is a friend of the Bar. He was invited as the Chief Guest at the National Law Conference organised by the Bar Association.

It is important to remember what he said at the conference which had been convened after the new President of the Bar Association Romesh De Silva P.C. was elected.

Long before the convocation for his induction where Romesh de Silva displayed his oratorical skill and his sense of humour when he spoke about his friends and foes at the Bar, Mr. Kadirgamar uttered some prophetic words of wisdom "However, candidates once placed in office in a professional body after a contested election are expected by the members of that body to play a demanding role, one which most office bearers will find extremely difficult to fulfil: that is, consciously to assert their independence from those who helped most to put them into office. Herein lies a dilemma for the Bar."

He also suggested that in addition to the elected Executive Committee, the incumbent President should have around him, informally a group of respected lawyers drawn from all political faiths who, collectively, would form a body known as the "Friends of the Chair", which he said was a mechanism often used in the International community, when tense and complex negotiations are being conducted.

Advice to the President

Hulftsdorp Hill was agog with a rumour that the two senior most members of the Executive Committee of the Bar Association, namely Faiz Mustapha, PC. and Chandra Seneviratne, PC. advised Romesh de Silva not to tender the affidavit required by Ranjit Abeysuriya, P.C.

Even Mahanama Tillakeratne has been told that Romesh de Silva was prevented from giving the affidavit which he promised to give Ranjit Abeysuriya by these two senior members of the Executive Committee of BASL.

Chandra Seneviratne was contacted by Romesh de Silva over the telephone at an unusually early hour one morning and asked his advice on this matter.

Mr. Seneviratne who had the enviable distinction of being a man of exemplary honour in his conduct both inside and outside court, and is highly respected by his peers, knew how important it was for Romesh de Silva to give the affidavit, after having given his account to the public both over the TNL and in the Sunday Leader.

When Mr. Seneviratne found it difficult to convince Romesh de Silva, he told him that he is advising him not only because he was the President of the Bar Association but also as he was a friend.

When Mr. Seneviratne found that Mr. Dayaratna, the Secretary and Nihal Jayamanne P.C. had given contrary advice to Romesh de Silva, Mr. Seneviratne took the trouble to speak to them and convinced them how important it was for the honour and the prestige of the Association for Romesh de Silva, its President, to give the affidavit.

When Faiz Mustapha P.C. told Chandra Seneviratne that it was improper for the President of the Bar Association to give an affidavit, as it would not be possible for any president to have any discussion with a public officer, Mr. Seneviratne's position was that it was irrelevant and did not fit into the circumstances of the present crisis the Bar was facing.

Then there was another story, that one of the members of the Executive Committee, who had participated actively in the deliberations where the Executive Committee decided to request Ranjit Abeysuriya P.C. to file a fundamental rights application on behalf of the judge, had subsequently offered his services to appear for Sarath N de Silva P.C.

For most members at Hulftsdorp, it was not a difficult guessing game or riddle, provided the story was true, who the member was. The other question was why Romesh de Silva agreed to state in detail in the affidavit the conversation he had with the Chief Justice, on the basis of what appeared in the Sunday Leader, but not with Sarath Silva.

The words imputed to the Chief Justice by Romesh de Silva "Nothing can be done" are not the words or the language usually spoken by the Chief Justice. The Chief Justice is careful in the selection of words he uses,.

As long as 'Show' Wickramasinghe was the recipient of the attack, it was a great show of solidarity by the Executive Committee, but when the facts emerged and the slogans appeared that the AG should resign, then it was the time to run for one's dear life, and leave every one including Ranjit Abeysuriya behind.

But the members of the Bar, both junior and senior, which became unified and did not have ulterior motives, picketed, protested and showed their solidarity with other members even on the day the fundamental rights application was first taken up for inquiry.

The Colombo Municipal Magistrates Court Lawyers Association led by Mr. Gray and Ananda Premasinghe, a senior member of the PA led the picketing in spite of rain and spurious exhortations by some members of the Executive Committee that lawyers should not picket.

The Attack on the Judiciary

The systematic attack on the judiciary and the profession did not begin with Mahanama Tillakeratne's incident. At the beginning it was the Supreme Court that was attacked. The main reason was the fundamental rights jurisdiction. There was a futile attempt to send the Chief Justice, on a foreign mission, creating a vacancy to be filled by a loyalist. It that happened, the entire Bar would have taken to the street. Then it was a Magistrate for having permitted an accused in the Nalanda Ellawala's case to surrender in Colombo. The objection at that time was that the offence was committed in another jurisdiction. But, the same theorists and the CID assisted by the AG produced Mahanama Tillakeratne in Colombo, when the offence was said to have been committed at Kesbewa a few miles away from Colombo.

The excuse was security, not that of the suspect but of the CID. After the acquittal of Dr. Rajitha Senaratna the guns turned against the High Court.

There was a malicious contemptible plant in the government-sponsored newspapers that an accused politico had entertained two high court judges to dinner. Resolutions were passed by the Bar Association.

The President of the Court of Appeal had submitted the papers to the AG. At that time it was thought that this mischief was intended at Mahanama Tillakeratne, but later names of other judges transpired. Still no charges of contempt has been framed against the publisher or the editor.

When the government treated the judiciary with contempt, the police, an arm of the executive, would go further and attack the judiciary. When this column published the manner in which the Mirihana Police treated Titus Cooray High Court Judge, Colombo, some readers were so shocked that they did not want to accept what they read. The discipline in the police had fallen to its lowest ebb. The primary reason is the police like other government agencies take the cue from their masters who are not their superiors but politicians. When the politicians castigate the courts and the judicial orders over the electronic media, they feel they have the right even to aim a gun at a High Court Judge who had gone to the police station, to see what had happened to his son. After Mahanama Tillakeratne was arrested by 'Show' and released on bail by graciousness of the AG's Department and wide publicity was given in the media of how the Showman treated a High Court Judge, Ms. Sujatha Alwis, Additional Magistrate was set upon by some goons when she was driving home after work.

The judiciary has become vulnerable to the attacks by politicians, common criminals and other henchmen for performing their duties.

Even the land given by the late President Premadasa to the judges at Udahamulla where as many as 65 judges live have not been spared by the local political thug.

After much discussion and meetings the Premadasa government gave the judges nearly 12.5 acres of land and had a reservation for the community. The judges with their meagre earnings took some time to construct their houses. The roads were demarcated by the UDA .

The intention was for the judges to have their own housing scheme and live within the community interacting with each other, and the general public would not be permitted access.

When the PA leadership attacked the judges, the message filtered down. It was considered by the local politicians that judges are in a far worse condition than even their political opponents.

The welfare society of the judges in the scheme decided to erect a gate to prevent miscreants entering the land. After the gate was erected the Pradeshya Sabha Member of the PA who had been in custody as a suspected insurgent came with a large gang of people and removed the gate by force.

The judges because of the pre-eminent position they have in society could not do anything to prevent such an action, but could only to complain to the police.

Even a thousand dinners cannot efface the humiliation the entire judicial community faced. Now the judges had to plead their cause before a another judge. It is a shame.

To add salt to the wounds, the present Minister of Housing had presented a Cabinet paper to allocate the reserve to the Pradeshiya Sabha Member; soon the judges may have leave their houses or rent them to others.

The local Pradeshiya Sabha member was more important to the Minister than 65 judges who are living in the housing scheme. The only rational basis for the step motherly treatment of the judges is that the judges are not performing the way the 'government wants them to perform.

The Bar was united in the Mahanama Tillakeratne issue not to defend an individual but the exalted office he holds. The members of the Bar have come out in unison to defend the judges from attack. Unless the judges themselves resolve to take immediate steps to arrest this situation, a time will come when even the Chief Justice will be attacked and remanded on a baseless trumped up charge.

The Bar has gone to the ultimate limits in support of an independent fearless judiciary. What more the Bar can do I cannot comprehend.

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